1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DIONTE COLEY,

 Plaintiff

v.

MURIEL BOWSER, et al.,

 Defendants

Civil Action No. 20-2182 (CKK)

MEMORANDUM OPINION

(April 22, 2021)

Dionte Coley (“Plaintiff”) has filed a civil action against Muriel Bowser, Peter Newsham, 

Karl Racine, Christopher Geldart, Laquandra Nesbitt, and Wayne Turnage (collectively, the 

“Moving Defendants”), as well as “Four Unidentified Metropolitan Police Officers” and “At Least 

Three Unidentified Department of Public Works Employees,” (collectively, with the “Moving 

Defendants,” “Defendants”). Plaintiff’s complaint asserts five counts against each Defendant, in 

both their individual and official capacities. In Counts I and II, Plaintiff asserts claims under 42 

U.S.C. § 1983 for alleged deprivations of his Fourth, Fifth, and Fourteenth Amendment rights, 

respectively. In Counts III, IV, and V, Plaintiff asserts common law claims against each Defendant 

for intentional infliction of emotional distress, conversion, and civil conspiracy. 

Now pending before the Court, is the Motion to Dismiss of the Moving Defendants. Upon 

consideration of the briefing, the relevant authorities, and the record as a whole,1 the Court will 

GRANT IN PART and DENY IN PART the Moving Defendants’ Motion. Specifically, the 

 1 The Court’s consideration has focused on the following briefing and material submitted by the parties:

• Compl., ECF No. 1;

• District of Columbia’s Mem. of P. & A. in. Supp. of Mot. to Dismiss, ECF No. 9;

• Defs.’ Mem. of P. & A. in. Supp. of Mot. to Dismiss (“Def.’s Mot.”), ECF No. 10;

• Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 11; and,

• Defs.’ Reply to Pl.’s Opp’n, ECF No. 13.

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of 

assistance in rendering a decision. See LCvR 7(f). 
2

Court will GRANT the Moving Defendants’ Motion, to the extent it seeks dismissal of Counts I 

through V against the Moving Defendants in their individual capacities. The Court, however, will 

DENY WITHOUT PREJUDICE the Moving Defendants’ Motion, to the extent it seeks

dismissal of Counts I through V against the Moving Defendants in their official capacities.

I. BACKGROUND

The Court sets forth the relevant factual background below. At the pleading stage, the 

Court’s factual background derives from the factual allegations in Plaintiff’s complaint. See Ralls 

Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 314–15 (D.C. Cir. 2014). The Court, 

however, does not adopt any of Plaintiff’s factual allegations or make any factual findings at this 

stage of the proceedings. 

A. Black Lives Matter Plaza

Following the tragic death of George Floyd in May 2020, “Black Lives Matter Plaza” in 

Washington, D.C. became a focal point for national protest movements and political tension. See

Compl. ¶¶ 27–36. Located across from Lafayette Square on 16th Street, between K Street and H 

Street, Northwest, the plaza developed into a bustling enclave filled with protesters participating 

in racial justice demonstrations. See id. ¶¶ 27, 40. The plaza also contained numerous homeless 

individuals, tents and personal property in the middle of the street, medic stations, and even a popup restaurant serving the nearby population. Id. By June 2020, protesters and demonstrations 

within the plaza garnered the close attention of then-President Donald Trump. See id. ¶¶ 30–32. 

In light of these demonstrations, then-President Trump activated federal law enforcement officers 

and allegedly threatened to assume control of the Metropolitan Police Department of the District 

of Columbia (“MPD”) to address emerging public safety concerns in the area. See id. ¶¶ 30–35.
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On June 22, 2020, the events surrounding Black Lives Matter Plaza reached a crescendo. 

Local protesters entered Lafayette Square and attempted to remove a statue of Andrew Jackson, 

id. ¶ 41, and, later that night, attempted to establish an “autonomous zone” around the historic St. 

John’s Church. See id. ¶ 42. In response, then-President Trump proposed a forceful intervention 

by federal law enforcement officers to impede the protesters’ activities. See id. ¶¶ 45–47. In turn, 

District of Columbia officials became concerned about the destabilizing effects of an autonomous 

zone in Black Lives Matter Plaza, as well as then-President Trump’s related proposal to federalize 

local law enforcement. See id. ¶ 48. To address these potential sources of unrest, Mayor Muriel 

Bowser promptly “convened a meeting” on June 22nd “with her top administration officials to 

determine the appropriate steps to resolve the [autonomous zone] situation and appease the White 

House.” Id. Plaintiff alleges that either the Moving Defendants themselves or “representatives”

from their respective agencies attended this meeting and “offered their views on the best ways to 

respond to Presidential pressure” over the protests. Id. ¶ 49. Plaintiff, however, does not make 

any concrete allegations about who specifically attended the June 22nd meeting or what any 

particular individual said or did during the meeting. See id. ¶¶ 48–50. Plaintiff does allege, 

however, that Mayor Bowser ultimately “decided to order the removal of the protesters” to prevent 

the creation of an autonomous zone and to preserve public safety. Id. ¶ 50. The District of 

Columbia declared the large enclaves of tents and personal property in the middle of the street 

within Black Lives Matter Plaza to be “encampments,” which posed a threat to public safety and 

were subject to removal. See id. ¶¶ 53–55. 

On June 23, 2020, District of Columbia officials carried out this encampment removal 

within Black Lives Matter Plaza. The first clearing occurred at approximately 1:00 PM ET, 

focusing on the area of the plaza closer to H Street, Northwest. See id. ¶¶ 58–63. Asecond clearing
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then occurred closer to K Street, Northwest, around 3:00 PM ET that afternoon. See id. ¶ 64. To 

clear these encampments, MPD officers removed protesters from the plaza and gathered 

abandoned property from the street and sidewalks for confiscation. See id. ¶¶ 51, 82. Then, MPD 

officers and officials from the Department of Public Works (“DPW”) deposited the collected 

property into garbage trucks for transport and disposal at a trash dump in Virginia. See id. ¶ 84. 

Plaintiff alleges that the District of Columbia has authority to clear encampments to 

promote public safety, but in doing so, it traditionally follows certain procedures, which provide 

for advance notice and the preservation of valuable property. See id. ¶¶ 56–57. Plaintiff alleges, 

however, that the District of Columbia did not follow these procedures when carrying out the June 

23, 2020 encampment clearings in Black Lives Matter Plaza. Id. ¶ 57. For example, Plaintiff 

alleges that District of Columbia officials failed to post signs warning of the removal of property

around the encampment site. See, e.g., ¶¶ 56, 60. Moreover, the District of Columbia allegedly 

failed to deploy intervention personnel into the encampment site to provide appropriate guidance 

to homeless individuals within the area. See id. Relatedly, the District of Columbia did not provide 

storage containers for the preservation of eligible property, see id. ¶ 57, nor did the District of 

Columbia provide individuals with information regarding how to retrieve their eligible property 

after the removal, see id. ¶ 60. Instead, the June 23, 2020 removal operation at Black Lives Matter 

Plaza allegedly permitted MPD officers to throw “all of the personal property” seized “into the 

trash.” Id. ¶ 59. Nonetheless, the District of Columbia’s encampment protocol makes clear that 

“[d]ue to safety and other concerns . . . [o]nly eligible property in plain sight, without manipulation,

will be stored.” Encampment Protocol at 8.

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 The encampment protocol further states that it “does 

 2 The District of Columbia’s encampment protocol procedures are incorporated into Plaintiff’s complaint 

by reference. See Compl. ¶ 56; Strumsky v. Washington Post Co., 842 F. Supp. 2d 215, 217–18 (D.D.C. 

2012) (discussing incorporation by reference at the pleading stage). The protocol procedures may be 
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not create any enforceable third party rights on behalf of any member of the public or any 

individual whose property may be the subject of this protocol.” Id. at 1.

B. Plaintiff’s Personal Experience At Black Lives Matter Plaza

Plaintiff is a professional cook, residing in Washington, D.C. See Compl. ¶ 4. In March 

2020, the COVID-19 pandemic forced restaurants in Washington, D.C. to close, reducing 

Plaintiff’s immediate employment prospects. See id. ¶ 65. Accordingly, Plaintiff decided to place 

his belongings in a local storage unit and temporarily move in with family in Raleigh, North 

Carolina, until Washington, D.C. restaurants re-opened. See id. After spending several months in 

North Carolina, Plaintiff learned that Washington, D.C., restaurants would re-open on June 22, 

2020. See id. ¶ 66. With renewed hopes of finding work, Plaintiff promptly planned his return to 

Washington, D.C. See id. Plaintiff purchased a bus ticket for his return trip and arranged for an 

apartment rental in the city. See id. To transport his personal effects, Plaintiff packed a single 

black backpack with his cell phone, three sets of clothes, his social security card, his birth 

certificate, his financial documents and certifications, $800 in cash to pay for rent, and the key for 

his Washington, D.C. storage locker. Id. ¶ 5.

Plaintiff arrived back in Washington, D.C. on the evening of June 22, 2020. See id. ¶ 67. 

That night, Plaintiff stayed with a close friend who lived near the intersection of 11th Street and P 

Street, Northwest. See id. The following day Plaintiff departed from his friend’s residence and 

proceeded towards Northeast, where he intended to reconnect with family and friends in the area. 

Id. ¶ 68. Hoping to catch an eastbound bus to his destination, Plaintiff made his way to the bus 

stop at the corner of 16th Street and K Street, Northwest. See id. ¶ 72. As he neared the bus stop, 

 

accessed here: https://dmhhs.dc.gov/sites/default/files/dc/sites/dmhhs/page_content/attachments/ 

Encampments%20Protocol_12.13.19.pdf.
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around approximately 2:30 PM ET, Plaintiff noticed “a large group of people in the area, some 

milling about and some sitting in tents.” Id. “It was only when [Plaintiff] got closer to the bus 

stop” that he realized he was in “Black Lives Matter Plaza.” Id. Plaintiff, who had just arrived in 

Washington, D.C. the night before, was unaware of the June 22nd events regarding the Andrew 

Jackson statue or the creation of an autonomous zone outside of St. John’s Church. See id. ¶ 73. 

Plaintiff was also unaware that District of Columbia officials had cleared an “encampment” near 

H Street, earlier that afternoon. See id. Plaintiff had not passed any signs or received any warnings 

informing him that the area around Black Lives Matter Plaza had been designated as an 

encampment or that a related police operation was ongoing that day. See id. ¶ 74.

Plaintiff continued to wait at the 16th Street and K Street bus stop for the arrival of an 

eastbound bus. See id. ¶ 75. While waiting for the bus, Plaintiff noticed a pedestrian “rubbing his 

face, eyes, and hair with milk.” Id. ¶ 76. The pedestrian informed Plaintiff that the police had 

used pepper spray on protesters in the area, but that “everything had calmed down.” Id. The 

pedestrian then invited Plaintiff “to sit in [his] tent to get out of the sun while waiting for the bus, 

and offered [Plaintiff] a bottle of water.” Id. Plaintiff accepted the offer. Id. After finishing the 

water and realizing that his bus would not arrive for another twenty minutes, Plaintiff then decided 

to have a cigarette to pass the time. See id. ¶ 77. 

Before smoking, Plaintiff set his backpack down and “moved a few steps away from his 

bag so his smoke would not bother anyone.” Id. But just as Plaintiff stepped away from his 

backpack, “over [one] hundred MPD officers swarm[ed] the area” in a sudden and “overwhelming 

show of force,” screaming “MOVE and GET THE F*** OUT OF THE WAY!” Id. ¶ 78. The 

MPD officers “advanced with a line of officers moving like a Roman phalanx against the wall of 

the southwest corner of the intersection of 16th Street and K Street.” Id. “At least two officers 
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shoved [Plaintiff], and at least twelve police officers cornered him against the building in the 

southwest corner of the intersection.” Id. “The police let no one they surrounded leave, and they 

separated [Plaintiff] from his backpack.” Id. The MPD officers then threw all of the items 

collected from the “encampment,” including Plaintiff’s backpack, “into a pile in[] the intersection 

of 16th Street and K Street.” Id. ¶ 82. The pile of confiscated items “was surrounded and protected 

by MPD officers.” Id.

Plaintiff attempted to explain to the officers that he was not a protester and was “in 

desperate need of [his] backpack,” which “contained all of his important documents and 

possessions.” Id. ¶ 81. But Plaintiff’s appeal for help was unsuccessful, see id. ¶¶ 81–87, and, 

shortly thereafter, MPD officers and DPW employees arrived to throw the confiscated items into 

a garbage truck for removal, see id. ¶ 84. These MPD and DPW officials “made no efforts to 

examine the personal belongings taken,” nor did they preserve valuable property seized from the 

plaza. Id. ¶ 86. As a result, Plaintiff was permanently dispossessed of his backpack, which 

contained his phone, his money for rent, the key to his storage locker, and his clothing. See id. ¶ 

89. Plaintiff also lost the personal identification documents within his backpack (i.e., his social 

security card and birth certificate), directly impeding his ability to provide employment 

verification when applying for jobs. See id. ¶ 92. Plaintiff is now homeless and destitute, with no 

clear avenue through which to recover the items stored within his confiscated backpack. See id.

¶¶ 15–16.

C. Procedural History

Based on the events described above, Plaintiff filed a five-count complaint on August 11, 

2020, against: (1) District of Columbia Mayor, Muriel Bowser, (2) MPD Chief of Police, Peter 

Newsham, (3) District of Columbia Attorney General, Karl Racine, (4) Acting Director of DPW, 
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Christopher Geldart, (4) Director of the District of Columbia Department of Health, Laquandra 

Nesbitt, and (5) Deputy Mayor for District of Columbia Health and Human Services, Wayne 

Turnage. See id. ¶¶ 19–24 (collectively, the “Moving Defendants”). Plaintiff’s complaint also 

names as Defendants, “Four Unidentified Metropolitan Police Officers” and “At Least Three 

Unidentified Department of Public Works Employees.” Id. ¶¶ 25–26. Plaintiff asserts five causes 

of action against each Defendant in both their individual and their official capacity. In Counts I 

and II, Plaintiff asserts claims under 42 U.S.C. § 1983 for alleged deprivations of his Fourth, Fifth, 

and Fourteenth Amendment rights, respectively. See Compl. ¶¶ 97–115. In Counts III, IV, and V, 

Plaintiff asserts common law claims against each Defendant for intentional infliction of emotional 

distress, conversion, and civil conspiracy. See id. ¶¶ 116–37.

On September 18, 2020, the Moving Defendants filed a motion to dismiss each count 

asserted against them in Plaintiff’s complaint, pursuant to Federal Rule of Civil Procedure 

12(b)(6). See Defs.’Mot. at 1. Plaintiff opposes this motion, and the parties have now fully briefed 

the issues raised therein. Accordingly, the Moving Defendants’ Motion to Dismiss is ripe for this 

Court’s review.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a 

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. 

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual 

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 

550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that 
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allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678. “When ruling on a defendant’s motion to dismiss, a judge must 

accept as true all of the factual allegations contained in the complaint.” Atherton v. D.C. Off. of 

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quotations omitted).

III. DISCUSSION

Plaintiff asserts five counts against the Moving Defendants in both their official and 

individual capacities. Counts I and II rest on constitutional theories of liability under 42 U.S.C. § 

1983 and alleged violations of Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights. 

Plaintiff’s remaining claims, in Counts III, IV, and V, assert common law claims for the intentional 

infliction of emotion distress, conversion, and civil conspiracy. The Court will address the Moving 

Defendants’ motion to dismiss each of these claims below.

A. Fourteenth Amendment Claims

At the outset, the Court finds that Plaintiff’s Fourteenth Amendment claims in Counts I and 

II fail as a matter of law. See Compl. ¶¶ 97–115. The Moving Defendants correctly argue that the 

Fourteenth Amendment applies only to the “States,” and is, therefore, inapplicable to the District 

of Columbia and its employees. See Defs.’ Mot. at 7; Kendrick v. United States, 238 F.2d 34, 36

n.2 (D.C. Cir. 1956) (“The Fourteenth Amendment is not applicable in the District of Columbia.”). 

In response, Plaintiff concedes that “the Fourteenth Amendment does not apply to the District of 

Columbia and consequently the named defendants.” Pl.’s Opp’n at 10 n.2. Accordingly, the Court 

DISMISSES all Fourteenth Amendment claims in Plaintiff’s complaint. 

B. Individual Capacity Claims

Next, the Court will consider Plaintiff’s remaining individual capacity claims against the 

Moving Defendants in Counts I through V. For the reasons set forth below, the Court concludes 
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that Plaintiff has failed to adequately plead his § 1983 claims and common law claims against any 

of the Moving Defendants in their individual capacities.

1. Counts I and II – Section 1983 Claims

In Counts I and II of the complaint, Plaintiff asserts constitutional tort claims under 42 

U.S.C. § 1983 against the Moving Defendants in their individual capacities. To state an individual 

capacity claim under § 1983, “a plaintiff must allege the violation of a right secured by the 

Constitution and laws of the United States, and must show that the alleged deprivation was 

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 

Here, Plaintiff alleges violations of his Fourth and Fifth Amendment rights. See Compl. ¶¶ 97–

115. “The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures.’” Turpin v. Ray, 319 F. Supp. 3d 

191, 198 (D.D.C. 2018) (quoting Payton v. New York, 445 U.S. 573, 589–90 (1980)). The Fifth 

Amendment “prohibits the [] government from depriving any person ‘of life, liberty, or property, 

without due process of law,’ and from taking ‘private property . . . for public use, without just 

compensation.’” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1265 (D.C. Cir. 2020) (quoting 

U.S. Const. amend. V).

Plaintiff’s Fourth and Fifth Amendment claims against the Moving Defendants in their 

individual capacities fail for multiple reasons. First, Plaintiff alleges no facts showing how the 

Moving Defendants were personally involved in his alleged constitutional injuries. Instead, 

Plaintiff asserts that he sustained Fourth and Fifth Amendment deprivations when unnamed MPD 

officers took his backpack on June 23, 2020 at Black Lives Matter Plaza during an encampment 

clearing. See Compl. ¶¶ 97–115. But under § 1983, “[g]overnment officials” like the Moving 

Defendants, “may not be held liable for the unconstitutional conduct of their subordinates under a 
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theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, a plaintiff 

must plausibly allege “that each Government-official defendant, through the official’s own 

individual actions, has violated the Constitution.” Id. (emphasis added). 

In this case, Plaintiff does not offer any allegations that the Moving Defendants themselves 

had personal involvement with Plaintiff, or even with the unnamed MPD officers who allegedly 

seized his backpack. At most, Plaintiff alleges that Mayor Bowser “convened a meeting” in June 

2020 to address emergency circumstances unfolding at Black Lives Matter Plaza, Compl. ¶ 48, 

and that as a result of that meeting, Mayor Bowser and her administration decided to “order the 

removal of protesters” to prevent the creation of an autonomous zone, id. ¶ 50. In fact, Plaintiff’s 

allegation that the Moving Defendants “or representatives from their agencies were present” at 

this meeting, calls into question whether the Moving Defendants themselves were even directly 

involved in the encampment clearing policy. Id. ¶ 49 (emphasis added). 

Moreover, Plaintiff cannot establish individual capacity claims against the Moving 

Defendants simply by referencing the District of Columbia’s alleged failure to abide by its own 

encampment protocol. See Compl. ¶¶ 56–60. To start, the protocol procedures are advisory and 

do “not create any enforceable third party rights on behalf of any member of the public or any 

individual whose property may be the subject of this protocol.” Encampment Protocol at 1. And 

even if the protocol was binding, Plaintiff fails to provide any factual allegations regarding how 

any of the Moving Defendants themselves specifically advocated for a policy in derogation of the 

traditional protocol procedures. Again, Plaintiff does not allege any facts about what the Moving 

Defendants specifically said or did, or even whether they were present at the June 2020 policy 

meeting in question. See id. ¶ 49. Without more, Plaintiff has not plausibly alleged how the 
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Moving Defendants violated his Fourth or Fifth Amendment rights through their “own individual 

actions.” Iqbal, 556 U.S. at 676.

Finally, Plaintiff’s § 1983 claims against the Moving Defendants in their individual 

capacities also fail to overcome the threshold barrier of qualified immunity. See Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985). “The doctrine of qualified immunity protects government 

officials ‘from liability for civil damages insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have known.’” 

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “A clearly established right is one that is sufficiently clear that every reasonable official 

would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (quotation omitted). “This inquiry must be undertaken in light of the specific context of 

the case, not as a broad general proposition,” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) 

(quotation omitted), and must focus on the “particular conduct” of the government officials in 

question, Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

Here, the Moving Defendants alleged conduct involves either attending or sending a 

representative to a policy meeting to discuss an encampment clearing procedure. See Compl. ¶¶ 

48–50. Specifically, Mayor Bowser “convened a meeting” to address emergency circumstances, 

including the development of an autonomous zone in Black Lives Matter Plaza and a potential 

federal take-over of local law enforcement. See id. ¶¶ 40–48. Plaintiff does not allege anything 

more specific regarding what any particular Moving Defendant said or did at the June 2020 policy 

planning meeting, or what role they played in the creation of the encampment removal policy 

implemented at Black Lives Matter Plaza on June 23, 2020. Without more concrete factual 

allegations, Plaintiff has not demonstrated that any of the Moving Defendants violated “settled 
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law” under the Fourth or Fifth Amendment, simply by participating in policy discussions geared 

towards addressing emergent public safety concerns. District of Columbia v. Wesby, 138 S. Ct. 

577, 591 (2018). Such alleged conduct does not plausibly demonstrate the type of “plainly 

incompetent” behavior required to overcome the bar of qualified immunity. Malley v. Briggs, 475 

U.S. 335, 341 (1986). Consequently, the doctrine of qualified immunity further shields each of 

the Moving Defendants from Plaintiff’s individual capacity Fourth and Fifth Amendment claims 

under § 1983.

2. Counts III, IV, and V – Common Law Claims

Plaintiff’s remaining individual capacity claims in Counts III, IV, and V, rest on common 

law theories of intentional infliction of emotional distress (“IIED”), conversion, and civil 

conspiracy. See Compl. ¶¶ 116–37. These claims also fail as a matter of law. 

To start, Plaintiff’s Count III asserts a common law claim for IIED against each of the 

Moving Defendants. See Compl. ¶¶ 116–25. To state a claim for IIED, “a plaintiff must show (1) 

extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly 

(3) causes the plaintiff severe emotional distress.” Competitive Enter. Inst. v. Mann, 150 A.3d 

1213, 1260 (D.C. 2016) (quotations omitted). The alleged conduct supporting the IIED claim

“must be 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.” Id. 

Plaintiff has not satisfied this common law standard, as to the Moving Defendants in their 

individual capacities. In his complaint, Plaintiff alleges that the Moving Defendants met to discuss

the emergency circumstances unfolding at Black Lives Matter Plaza in June 2020. See Compl. ¶¶ 

48–50. Nowhere, however, does Plaintiff allege that any Moving Defendant had an awareness of 

Plaintiff at the plaza, let alone direct contact with him at the time of his alleged injury. See id. ¶¶ 
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78–88. Absent such a connection, it is not plausible that the Moving Defendants could have 

intentionally or recklessly caused Plaintiff severe emotional distress. Indeed, the Court has found 

no support for such a derivative common law claim, which would allow for IIED liability against 

a municipal official with no personal awareness of the plaintiff in question. To the contrary, courts 

consistently require some direct connection between the IIED defendant and the plaintiff upon 

whom they allegedly inflict severe emotional distress. See, e.g., Kurd v. Republic of Turkey, 374 

F. Supp. 3d 37, 55 (D.D.C. 2019) (finding a plausible IIED claim against defendants who 

“directed” their actions towards and physically assaulted counter-protesters); District of Columbia 

v. Tulin, 994 A.2d 788, 801 (D.C. 2010) (observing that an “indirect” theory of IIED liability still 

involved a direct connection between the officer-defendant and the plaintiff). Plaintiff cites to no 

countervailing authority. Against this backdrop, the Court concludes that Plaintiff has failed to 

plead a plausible IIED claim against the Moving Defendants in their individual capacities. 

Next, Plaintiff’s common law conversion claim against the Moving Defendants in Count 

IV falls short for similar reasons. See Compl. ¶¶ 126–31. “Under District of Columbia law, 

conversion is defined as an intentional exercise of dominion or control over a chattel which so 

seriously interferes with the right of another to control it that the actor may justly be required to 

pay the other full value of the chattel.” Johnson v. McCool, 808 F. Supp. 2d 304, 308 (D.D.C. 

2011) (quotation omitted); see also Greenpeace, Inc. v. Dow Chem. Co., 97 A.3d 1053, 1063 (D.C. 

2014). To state a viable conversion claim, a plaintiff must demonstrate “that the defendant 

participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the 

personal property of another, (4) in denial or repudiation of that person’s rights thereto.” McCool, 

808 F. Supp. 2d at 308. In this case, Plaintiff does not allege that any of the Moving Defendants 

ever had contact with his backpack or any of his property therein. See Compl. ¶¶ 78–88. In his 
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opposition brief, moreover, Plaintiff supports his conversion claim by pointing instead to the role 

of street-level MPD officers in assuming control of his property, not the Moving Defendants 

themselves. See Pl.’s Opp’n at 27–28 (“The seizure of Mr. Coley’s backpack by MPD officers 

and subsequent destruction seriously interferes with Mr. Coley’s right to exercise his dominion 

and control over his bag.”). Without any allegations that the Moving Defendants themselves 

exercised control over Plaintiff’s property, Plaintiff’s common law conversion claim against them 

in their individual capacities fails as a matter of law.

This leaves only Plaintiff’s civil conspiracy claim in Count V against the Moving 

Defendants. See Compl. ¶¶ 132–37. Under District of Columbia law, “the elements of a civil 

conspiracy claim are ‘(1) an agreement between two or more persons; (2) to participate in an 

unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful 

overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, 

the common scheme.’” Inova Health Care Servs. for Inova Fairfax Hosp. v. Omni Shoreham 

Corp., No. CV 20-784 (JDB), 2020 WL 4201661, at *7 (D.D.C. July 22, 2020) (quoting Exec.

Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C. 2000)). A civil conspiracy, 

however, “is not an independent tort but only a means for establishing vicarious liability for an 

underlying tort.” Hill v. Medlantic Health Care Grp., 933 A.2d 314, 334 (D.C. 2007).

Here, the Moving Defendants argue that because Plaintiff fails to plead a predicate common 

law tort claim against the Moving Defendants (i.e., IIED or conversion), Plaintiff’s civil conspiracy 

claim against them must fail as well. See Defs.’ Mot. at 11. The Court is not persuaded by this 

foundational argument. “A conspirator need not participate actively in or benefit from the 

wrongful action in order to be found liable.” Halberstam v. Welch, 705 F.2d 472, 481 (D.C. Cir. 

1988). To the contrary, a conspirator may still be liable “regardless of whether they actually 
16

committed the tortious act,” so long as another party commits the underlying wrongful act in 

furtherance of their collective agreement. Nader v. Democratic Nat’l Comm., 567 F.3d 692, 697 

(D.C. Cir. 2009); see also Inova Health, 2020 WL 4201661, at *8 (noting that courts in this district 

“permit[] civil conspiracy claims to proceed against parties that had no underlying tort asserted 

against them.”). 

Plaintiff’s complaint presents no allegations regarding a conspiratorial scheme or 

agreement, involving the Moving Defendants, to specifically harm Plaintiff. At most, Plaintiff 

alleges that the Moving Defendants discussed and ordered an encampment clearing and the

removal of protesters at Black Lives Matter Plaza. See id. ¶¶ 48–50, 134. These allegations do 

not plausibly demonstrate a conspiratorial “agreement” between the Moving Defendants and 

street-level MPD officials “to inflict a wrong against or injury upon” Plaintiff himself. Brady v. 

Livingood, 360 F. Supp. 2d 94, 104 (D.D.C. 2004). There is a meaningful distinction between an 

allegedly unconstitutional policy directive, dutifully carried out by subordinate officers, and a 

genuine agreement between a government official and his subordinates to wrongfully injure a 

particular party. See Graves v. United States, 961 F. Supp. 314, 320 (D.D.C. 1997) (explaining 

that an agreement requires a “meeting of the minds”). Plaintiff offers no contrary authority or 

argumentation in his brief. Accordingly, the Court concludes that, absent any plausible allegations 

of a common scheme or agreement, Plaintiff’s common law conspiracy claim against the Moving 

Defendants falls short. 

C. Official Capacity Claims

Finally, the Court will consider Plaintiff’s official capacity claims against the Moving 

Defendants in Counts I through V. As a threshold matter, “a suit against a state official in his or 

her official capacity is not a suit against the official but rather is a suit against the official’s office.” 
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Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, “[a] section 1983 suit 

for damages against municipal officials in their official capacities is . . . equivalent to a suit against 

the municipality itself.” Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) 

(citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)). Similarly, “a tort action brought 

against city officials in their official capacities is equivalent to an action against the city.” Robinson 

v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005); see also Price v. District of 

Columbia, 545 F. Supp. 2d 89, 95–96 (D.D.C. 2008). The Court will, therefore, treat each of 

Plaintiff’s official capacity claims in Counts I through V, as municipal claims against the District 

of Columbia.3

 

1. Counts I and II – Section 1983 Claims

Accepting Plaintiff’s allegations as true at the pleading stage, Plaintiff has stated a § 1983 

claim against the District of Columbia for violations of his Fourth and Fifth Amendment rights. 

See Compl. ¶¶ 97–115. To state a § 1983 claim for municipal liability (i.e., a Monell claim) a 

plaintiff must demonstrate that “the municipality itself cause[d] the constitutional violation at 

issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. New York City Dept. 

of Social Services, 436 U.S. 658 (1978)). To do so, the plaintiff must sufficiently allege a 

“predicate constitutional violation” caused by “a custom or policy of the municipality.” Baker v. 

District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). For example, the plaintiff may allege 

that “the municipality or one of its policymakers explicitly adopted the policy that was the moving 

 3 Plaintiff does not name the District of Columbia as a defendant in this law suit, but makes a point to 

emphasize that each Defendant has “been named in their personal capacities as well as their official 

capacities.” Pl.’s Opp’n at 25. Plaintiff even argues that because “the District of Columbia is not a named 

defendant . . . dismissal of [his] official capacity claims against the Defendants should be denied.” Id. The 

utility of Plaintiff’s argument on this point is unclear. As explained throughout this Memorandum Opinion, 

Plaintiff’s “official capacity” claims are claims against the District of Columbia, and the Court will treat 

them as such. In evaluating these municipal claims, the Court has also considered the arguments presented 

in the District of Columbia’s Motion to Dismiss. See ECF No. 9.
18

force [behind] the constitutional violation” alleged. Warren v. District of Columbia, 353 F.3d 36, 

39 (D.C. Cir. 2004) (quotation omitted). “Municipalities, unlike their officers, have no qualified 

immunity from suit under § 1983.” Richardson v. District of Columbia, 322 F. Supp. 3d 175, 186 

(D.D.C. 2018) (citing Owen v. City of Independence, 445 U.S. 622, 650 (1980)).

In this case, Plaintiff points to the June 23, 2020 encampment clearing at Black Lives 

Matter Plaza as the municipal policy that caused his alleged Fourth and Fifth Amendment injuries. 

See, e.g., Compl. ¶¶ 97–115. At the motion to dismiss stage, the June 23rd encampment clearing 

plausibly qualifies as an official “policy,” which was rendered by the District of Columbia and its 

policymakers. Warren, 353 F.3d at 39. Specifically, Plaintiff alleges that Mayor Bowser and her 

administration “decided to order the removal of . . . protesters” at Black Lives Matter Plaza, Compl. 

¶ 50, and authorize the clearing of “encampments” in the area, see id. ¶ 53. Plaintiff further alleges

that the June 23rd encampment removal policy was adopted by city officials including Chief of 

the Metropolitan Police Department Peter Newsham, and the Deputy Mayor for Health and Human 

Services Wayne Turnage, “whose office is responsible for the removal of all other encampments 

in the city.” Id. ¶ 53; see also id. ¶¶ 103, 111. These allegations plausibly demonstrate the “explicit 

setting of a policy by the government.” Baker, 326 F.3d at 1306. The Court is also satisfied that 

under local law, see Hamilton v. District of Columbia, 852 F. Supp. 2d 139, 150 (D.D.C. 2012),

these administrative officials possessed final policymaking authority over encampment 

designations and removal actions, sufficient to render the June 23rd encampment removal a 

municipal “policy” for the purposes of a Monell claim, see, e.g., D.C. Code § 8-741(b); 24 DCMR 

§ 121; D.C. Code § 42-3131.01.

Next, Plaintiff plausibly alleges, at least at the motion to dismiss stage, that the District of 

Columbia’s June 23rd encampment removal policy caused him to suffer Fourth and Fifth 
19

Amendment deprivations. As to the Fourth Amendment, Plaintiff alleges that MPD officers 

carrying out the June 23rd clearing physically separated Plaintiff from his backpack, while it was 

only “a few steps away” from him, and then sent the backpack to a trash dump in Virginia. Compl. 

¶¶ 77, 84. These allegations of a permanent seizure of personal property, absent any showing of

continued probable cause or abandonment, plausibly demonstrate an interference with Plaintiff’s 

possessory interest in his backpack and an unreasonable seizure under the circumstances. See 

United States v. Miller, 799 F.3d 1097, 1102 (D.C. Cir. 2015) (“It is well established that the 

reasonableness of a seizure turns on the nature and extent of interference with possessory . . . 

interests.”); Proctor v. District of Columbia, 310 F. Supp. 3d 107, 114 (D.D.C. 2018) (citing Lavan 

v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)). 

The Court acknowledges that the “community caretaking” exception may have justified

the seizure of Plaintiff’s backpack, given the emergency circumstances at Black Lives Matter 

Plaza. See Defs.’ Mot. at 10 (citing S. Dakota v. Opperman, 428 U.S. 364 (1976)). Nonetheless, 

even under the “community caretaking” exception, a seizure must still be objectively reasonable 

and “an officer who happens to come across an individual’s property in a public area c[an] seize it 

only if Fourth Amendment standards are satisfied.” Soldal v. Cook Cty., Ill., 506 U.S. 56, 68 

(1992). In this case, whether or not the seizure of Plaintiff’s backpack was a reasonable act in 

furtherance of public safety will depend on the emergent events unfolding at Black Lives Matter 

Plaza on June 23, 2020 and whether Plaintiff had abandoned his bag. See Compl. ¶ 77. These 

fact-bound inquiries are not suitable for disposition at the pleading stage, where the Court does not 

resolve factual disputes, but instead, accepts Plaintiff’s well-pleaded allegations as true. See Bloem 

v. Unknown Dep’t of the Interior Emps., 920 F. Supp. 2d 154, 162–63 (D.D.C. 2013). As such, the 
20

Court will permit Plaintiff’s Fourth Amendment Monell claim to proceed past the motion to 

dismiss stage.

Plaintiff has also alleged a Fifth Amendment Monell claim against the District of Columbia 

that is at least sufficient to survive a motion to dismiss. See Compl. ¶¶ 108–15. First, Plaintiff 

alleges a property interest in his backpack, as well as the clothes, personal identification 

documents, and cash stored inside. Id. ¶ 89. Plaintiff then alleges that his backpack was 

confiscated by MPD and DPW officials in Black Lives Matter Plaza, see id. ¶¶ 82, 84, absent those 

officials providing Plaintiff any notice of the confiscation, see id. ¶ 74, or a meaningful opportunity 

to object to the confiscation or retrieve his property thereafter, see id. ¶¶ 81–87. Relatedly, Plaintiff 

alleges that the provision of some pre-deprivation notice or a post-deprivation retrieval procedure 

would have reduced the risk of an erroneous property deprivation, such as the one Plaintiff 

allegedly experienced here. See Compl. ¶¶ 56–57, 86; Mathews v. Eldridge, 424 U.S. 319, 343

(1976). At the motion to dismiss stage, this alleged confiscation of personal property by the 

District of Columbia, absent any notice or a hearing, plausibly states a Monell claim for a Fifth 

Amendment procedural due process violation. See, e.g., N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 

1244, 1265 (D.C. Cir. 2020) (explaining that procedural due process demands “at minimum, the 

basic requirements of notice and an opportunity to be heard”); Proctor v. District of Columbia, No. 

1:18-CV-00701 (TNM), 2018 WL 6181739, at *4 (D.D.C. Nov. 27, 2018) (denying motion to 

dismiss procedural due process claim involving the confiscation of allegedly unattended property).

In response, the Moving Defendants argue that Plaintiff’s procedural due process claim 

fails because state tort law provides Plaintiff with an adequate post-deprivation remedy. See Defs.’ 

Mot. at 10. The Moving Defendants are correct that “[w]here procedures exist under state law that 

‘could have fully compensated the [plaintiff] for the property loss he suffered,’ and the property 
21

loss is a result of ‘random, unauthorized’ conduct not sanctioned by state law, there is no procedural 

due process claim under section 1983.” Avila v. Dailey, 246 F. Supp. 3d 347, 361 (D.D.C. 2017)

(quoting Parratt v. Taylor, 451 U.S. 527, 544 (1981)). This exception, however, applies where 

“post-deprivation tort remedies are all the process that is due, simply because they are the only 

remedies the State could be expected to provide.” Zinermon v. Burch, 494 U.S. 113, 132 (1990).

At the pleading stage, the Court is not persuaded that a post-deprivation tort claim is all the

process the was owed to Plaintiff. First, Plaintiff’s deprivation, at least as alleged, did not arise 

from a “random and unpredictable” occurrence, but rather from an encampment removal operation

authorized by the District of Columbia. Id. Moreover, it remains unclear at the motion to dismiss 

stage whether a state law tort remedy would adequately redress Plaintiff’s alleged injuries. See, 

e.g., Compl. ¶¶ 91–96; Pl.’s Reply at 21. Accordingly, the Court declines to dismiss Plaintiff’s 

procedural due process claim at this time, on the basis of Plaintiff’s potential access to a postdeprivation tort remedy. See Zinermon, 494 U.S. at 127 (“Due process . . . is a flexible concept 

that varies with the particular situation.”). 

2. Counts III, IV, and V – Common Law Claims

This leaves only Plaintiff’s common law tort claims in Counts III, IV, and V. The Court 

reiterates that Plaintiff’s complaint names each Defendant in their official capacity. See Compl. 

¶¶ 19–26. As such, Plaintiff’s common law tort claims in Counts III, IV, and V also stand as 

official capacity claims, and “a tort action brought against city officials in their official capacities 

is equivalent to an action against the city itself.” Robinson v. District of Columbia, 403 F. Supp. 

2d 39, 49 (D.D.C. 2005); see also Price v. District of Columbia, 545 F. Supp. 2d 89, 95 (D.D.C. 

2008). In their briefing, no Defendant has presented a freestanding argument for the dismissal of 

these official capacity claims in Counts III, IV, and V, properly characterized as claims against the 
22

District of Columbia.4 Consequently, the Court will not dismiss Plaintiff’s official capacity claims 

in Counts III, IV, and V, at this time.

IV. CONCLUSION

For the reasons set forth herein, the Court will GRANT IN PART and DENY IN PART

the Moving Defendants’ Motion. Specifically, the Court will GRANT the Moving Defendants’ 

Motion, to the extent it seeks dismissal of Counts I through V against each of the Moving 

Defendants in their individual capacities. The Court also DISMISSES all of Plaintiff’s Fourteenth 

Amendment claims. The Court, however, will DENY WITHOUT PREJUDICE the Moving 

Defendants’ Motion, to the extent it seeks dismissal of Plaintiff’s official capacity claims against 

the Moving Defendants. An appropriate Order will accompany this Memorandum Opinion.

Date: April 22, 2021

 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge

 4 Defendants did argue that this Court should exercise its discretion and dismiss any common law claims 

against the District of Columbia for lack of supplemental jurisdiction. See Mot. to Dismiss, ECF No. 9, at 

14–15. This argument, however, presupposes the Court’s dismissal of Plaintiff’s constitutional claims. 

Because some of Plaintiff’s constitutional claims remain, the Court will not dismiss any of Plaintiff’s 

common law claims for want of supplemental jurisdiction, a matter left to this Court’s discretion. See 28 

U.S.C. § 1367(c).