UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) RADCLIFFE BANCROFT LEWIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1314 (RJL) ) GOVERNMENT OF THE ) DISTRICT OF COLUMBIA et ai., ) ) Defendants. ) )

MEMORANDUM OPINION ~ August ~, 2009

In this civil action, plaintiff, proceeding pro se and in forma pauperis, alleges that on

May 24,2005, an officer of the Metropolitan Police Department ("MPD") forced him to leave

the Greyhound Bus Station apparently without cause. He sues the District of Columbia, an MPD

officer identified only as Anderson, Emmanuel Oghogho of the District's Office of Risk

Management, and Greyhound Bus Company, which has been dismissed from the case. See Order

of November 21,2008 (granting Greyhound Lines, Inc.'s motion to dismiss as conceded). The

District of Columbia moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, asserting that the case is barred by the statute of limitations and that plaintiff has

failed to state a claim against the municipality.

Upon consideration of the parties' submissions and the entire record the Court grants the

District's motion to dismiss for failure to state a federal claim. I In addition, the Court dismisses

I Pursuant to

(c)(3), the Court declines to exercise supplemental

jurisdiction over any remaining claims against the District of Columbia. sua sponte the complaint against Emmanuel Oghogho whom plaintiff sues for actions taken in

his official capacity as an "agent" of the District via its Office of Risk Management. CompI. at 3,

19; see Kentucky v. Graham,

(1985) (an official-capacity lawsuit "is, in all

respects other than name, to be treated as a suit against the entity,,).2

I. BACKGROUND

Plaintiff alleges that he was seated in the dining area of the Greyhound bus station

"supping tea ... preparing to eat a burrito ... [and] performing a sketching exercise on a sheet of

paper," CompI. at 5, when a black MPD officer (Anderson) told him that without a bus ticket he

had fifteen minutes to leave.

"[L]ess than three minutes thereafter," the officer told plaintiff

that he had ten minutes to leave. !d. Plaintiff asked the cashier for a refund "explaining that I am

not able to eat the burrito fast enough to satisfy their police officer who is ordering me to leave."

[d. The officer then ordered plaintiff to leave immediately.

Plaintiff "called 911 and

requested a supervisor," but was unable "to effectively report ... the [officer's] name and badge

number" because the badge was partially concealed. Id. at 6. A white officer responded to the

first officer's call for backup. Id. When plaintiff approached the cashier again, the first officer

"instruct[ed] the service workers not to provide a refund [and] picked up the burrito ... and

placed it in a white plastic bag." !d. When plaintiff left the building, the officer told plaintiff

2 As to the remaining defendant, Officer Anderson, the docket shows a return of service

indicating that the United States Marshals Service personally served "Metropolitan Police Officer Anderson-First District-CIO Custodian or Records" via service upon "file clerk" Jeanne Schofield. Dkt. No.4. Anderson has not appeared in the case, but the proof of service based on information supplied by plaintiff in the complaint is wholly deficient. Because Officer Anderson is the only defendant directly implicated in the alleged wrongdoing, the Court will allow time for plaintiff to provide correct information about this defendant so that--in the unlikely event that plaintiff is successful--the court officers can fulfill their duty under 28 U.S.c. § 1915(d) to serve Anderson with process.

2 that he did not want to '" see [him] in my building again. ,,, Id. Plaintiff called 911 again and was

told that there was no record of his previous call. When plaintiff relayed the incident to another

officer who had driven to the scene and requested assistance with "preserving the evidence of the

occurrence," he was denied assistance but told that he could file a complaint with the Second

District. Id. at 7. "On the night" of the incident, plaintiff attempted to file a report with the

Second District but "the front desk attendant was unable to accept the complaint because we

were unable to decipher the identity of the alleged police officer ... who accosted me." Id. at 9.

"[A]bout a month later [while passing] the Greyhound bus stop," plaintiff saw the officer and

"dared to inquire as to his name and badge number." !d. To plaintiffs "best recollection [he]

heard it stated' Anderson,' as well as the badge number." Id.

The Clerk of Court initially received plaintiffs complaint on May 27,2008, and formally

filed it on July 30, 2008, one day after the granting of plaintiffs motion to proceed informa

pauperis. Plaintiff sets forth the following claims: "Unreasonable Search and Seizure and

Wrongful Ejection"; "Retaliatory Denial of Due Process and Infringement of Privacy"; and

"Public Humiliation and Wrongful Infliction of MortifYing Shame." Id. at 1-3. He also claims

that he was discriminated against based on his race because Officer Anderson accosted him, "a

[paying] Black patron ... while [not disturbing] a sleeping and non-paying white loiterer [who]

was within ten paces of [the officer]." Id. at 12.

II. DISCUSSION

1. The Case is Not Time Barred

Reading the complaint liberally, the Court considers the complaint as brought under

and the District's common law. The maximum time permitted for bringing such

3 claims is three years from the date the action accrued. See Lewis v. Bayh,

(D.D.C. 2008) ("In the District of Columbia,

(8) governs [§ 1983] claims and

provides a [catch-all] three-year statute of limitations."); see id at 52 ("D.C. Circuit law clearly

provides one-year or three-year statutes of limitations for § 1983 ... claims.") (citations omitted).

The District argues that plaintiffs § 1983 and common law claims are barred by the District's

three-year statute of limitations, but it erroneously relies on the filing date of July 30, 2008. The

Court is familiar with the Office of the Clerk's processing of a complaint submitted with a

motion to proceed in forma pauperis. It takes judicial notice of the administrative delay that

occurs in most instances between the Clerk's receipt of the complaint and the formal filing or

docketing of the complaint. In such circumstances, the Clerk's receipt date controls for purposes

of timeliness. See Guillen v. National Grange,

(D.D.C. 1997) (finding a

Title VII litigant "not responsible for the administrative delay associated with the Court's review

of petitions to proceed in forma pauperis . ... [T]he presentation of a complaint [and] a petition

to proceed in forma pauperis tolls the ninety-day period of limitations ... ") (citations omitted);

accord Okereh v. Winter,

(D.D.C. 2009).

In his opposition, plaintiff correctly asserts that May 24, 2008 (the limitations deadline),

was a Saturday and Monday, May 26,2008, was a holiday. See PI. 's Response to the District of

Columbia's Motion to Dismiss [Dkt. No. 24] at 5. The Clerk's receipt of the complaint on the

next business day of May 27,2008, therefore constitutes a timely filed action. See Okereh,

("Because June 2 was a Saturday, Mr. Okereh had until Monday, June 4,2007,

to file his complaint.").

4 2. Plaintiff Fails to State a Federal Claim Against the District of Columbia

A court may dismiss a complaint on the ground that it fails to state a claim upon which

relief can be granted if, assuming the alleged facts to be true and drawing all inferences in the

plaintiffs favor, it appears that the plaintiff can prove no facts "consistent with the allegations in

the complaint" to support the claim. Bell Atlantic Corp. v. Twombly,

,

(2007); accord Ashcroft v. Jqbal,

(2009). "[T]he

pleadings [must] suggest a 'plausible' scenario to 'sho[w] that the pleader is entitled to relief[.]'''

Tooley v. Napolitano,

(D.C. Cir. 2009) (quoting Twombly,

).

Thus, "[ w ]hile a complaint attacked by a Rule 12(b)( 6) motion to dismiss does not need detailed

factual allegations, ... a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to

relief requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do[.]" Twombly,

-65 (citations omitted). And "even apro

se complainant must plead 'factual matter' that permits the court to infer 'more than the mere

possibility of misconduct. '" Atherton v. District of Columbia Office of Mayor, 567 F .3d 672,

681-82 (quoting Jqbal,

).

Section 1983 creates a cause of action against a "person" who, while acting pursuant to

"any statute, ordinance, regulation, custom, or usage, of any State ... or the District of

Columbia" deprives an individual of "any rights, privileges, or immunities secured by the

Constitution and laws." 42 U.S.c. § 1983. Plaintiff invoked the Constitution and 42 U.S.C.

§ 2000a (prohibiting discrimination in places of public accommodation). To establish a claim

under § 1983 against the District, plaintiff must allege that the individual wrongdoer-Officer

Anderson-acted pursuant to an unconstitutional policy, practice or custom promulgated or

5 sanctioned by the municipality. Daskalea v. District a/Columbia,

(D.C. Cir.

2000) (internal citations omitted); Triplett v. District of Columbia,

(D.C.

Cir. 1997); Meyer v. Reno

(D.D.C. 1996) (citing cases). Municipal liability

cannot be based on a theory of respondeat superior or vicarious liability. Iqbal,

; Graham v. Davis,

(D.C. Cir. 1989) (citing Monell v. Dep't. 0/ Social Services a/the City a/New York,

(1978)).

Plaintiffs allegations do not state or infer that Officer Anderson acted pursuant to District

of Columbia policy or custom but rather suggest that Officer Anderson was working off-duty for

Greyhound at the time of the incident. See CompI. at 10 ~ ("The suspect who is the subject of

this complaint apparently sought to enforce a mandate by the Greyhound Bus Company (an

alleged private company)"; id. at 17 (questioning "whether it is appropriate for off-duty police

officers to ... utilize the police powers of the state in carrying out the duties of private clients").

Plaintiff has stated no facts to support a § 1983 claim against the movant. Cf Atherton, 567 F.3d

at 691 ("The facts alleged by Atherton do not support an inference of a course the city's

'policymakers consciously chose to pursue."') (quoting Triplett,

). The District

of Columbia's Rule 12(b)(6) motion to dismiss therefore is granted. A separate Order

accompanies this Memorandum Opinion.

~.~ RICHAR J. LEON United States District Judge

6