UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ GREGORY HARRIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0622(GK) ) ) DISTRICT OF COLUMBIA ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff, Gregory Harris (“Plaintiff”), brings this action

against Defendant, the District of Columbia (“Defendant”), under

and various common law claims arising from

Plaintiff’s arrest.

This matter is now before the court on Defendant’s Motion to

Dismiss or, in the Alternative, for Summary Judgment (“Def.’s

Mot.”) [Dkt. No. 17]. Upon consideration of the Motion,

Opposition, Reply, the entire record herein, and for the reasons

stated below, Defendant’s Motion to Dismiss is granted. I. BACKGROUND

A. Factual Background1

Parties offer markedly different accounts of the underlying

incident. Plaintiff is a duly-commissioned Special Police Officer

for the District of Columbia. Compl. ¶ 10 [Dkt. No. 1]. On April

7, 2008, members of the District of Columbia Metropolitan Police

Department (“MPD”) conducted what Defendant terms an

“administrative inspection” and Plaintiff terms a warrantless

“raid” at Community Development Institute (“CDI”) Head Start

School, a daycare center located at 444 16th Street, N.E. in

Washington, DC, where Plaintiff was on duty. Pl.’s Opp’n at 1; see

U.S. Dep’t of Health and Human Servs., Admin. For Children and

Families, Community Development Institute Fast Facts, available at

http://cditeam.org/cdheadstart/facts/.

The MPD officers were assigned to perform the inspection

because the MPD Security Officers Management Branch (“SOMB”)

received a memorandum from Falken Industries, Plaintiff’s employer,

“requesting a uniform waiver for a special protective detail to

work at CDI head start school,” and to allow the Falken employees

to carry handguns while on duty there. Affidavit of Sgt. Anthony

1 For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008); Shear v. Nat’l Rifle Ass’n of Am.,

(D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the Complaint unless otherwise noted.

-2- Moye, Def.’s Mot., Ex. A [Dkt. No. 17-2]. SOMB ordered the

inspection after a WALES search showed that none of the listed

handguns were on record.

Plaintiff believes that he had

authorization both to work at the daycare center and to carry a

gun, based on his employer’s verbal notification to SOMB. Pl.’s

Opp’n to Mot. to Dismiss or for Summ. J. at 1-2, 13 (“Pl.’s Opp’n”)

[Dkt. No. 18].

At the daycare center, the MPD officers observed that

Plaintiff’s identification badge indicated he was assigned to work

at a different location, and that he was not authorized to carry a

firearm. Def.’s Mot. at 1-2. The MPD ran a search for Plaintiff’s

gun, and found no record of registration for it.

The officers

arrested Plaintiff and seized “numerous items” of the Plaintiff’s

personal property and Plaintiff’s employer’s personal property.

Compl. ¶ 16.

Defendant states that the officers requested to speak to

Plaintiff and another officer in private, that Plaintiff led them

to an empty classroom, and that the arrest occurred there. Def.’s

Mot. at 1. Harris, however, describes being arrested by twelve

officers with weapons drawn, who forced him to the ground in front

of the very schoolchildren he was assigned to protect. Pl.’s Opp’n

at 2, 24. Parties agree, however, that he then spent the night in

jail. At Plaintiff’s presentment hearing, he was released on the

condition that he not possess a firearm in the District of

-3- Columbia. Def.’s Mot., Ex. E [Dkt. 17-5]. Based on the affidavit

of Sergeant Anthony Moye, the supervising officer at the arrest,

the United States Attorney’s Office charged Plaintiff with

“Carrying a Pistol Without a License [Outside Home or Place of

Business], in violation of 22

(a) (2001 ed.).”

However, after Defendant moved to dismiss the case, charges were

dismissed on June 16, 2008.

Plaintiff alleges that, on June 11, 2008, he received a letter

from Sgt. Moye revoking his Special Police Commission. Compl. ¶ 28.

Plaintiff received another letter, dated July 30, 2008, stating

that Plaintiff’s Special Police Commission was suspended for twenty

days.

.2 The MPD has not returned Plaintiff’s personal

property.

B. Procedural Background

Plaintiff initiated this suit on April 3, 2009, filing a

Complaint that contains the following seven counts: deprivation of

liberty under the Fourth Amendment, when Plaintiff was arrested

without probable cause during a warrantless search (Count I);

deprivation of a property interest, under the Fifth Amendment, when

his property was seized and never returned (Count II); malicious

prosecution of the Plaintiff initiated by Sgt. Moye (Count III);

2 There is much confusion as to whether Plaintiff was revoked, suspended, or both. Plaintiff never filed the letter of June 11, 2008; Defendant filed the letter of July 30, 2008. Because of this confusion, the Court will often refer simply to the “revocation/suspension.”

-4- deprivation of a property interest when he was denied the right to

work as a Special Police Officer (Count IV); deprivation of a

liberty interest, under the Eighth Amendment (Count V), excessive

force employed during the search (Count VI); and intentional

infliction of emotional distress (Count VII). Counts I, II, IV, V

and VI are brought pursuant to

, and Counts III and

VII are brought under the common law of the District of Columbia.

The Clerk entered a default judgment against the Defendant on

May 21, 2009, after it failed to respond to the Complaint. [Dkt.

No. 5]. Defendant filed a Motion to Set Aside Default on June 5,

2009, to which Plaintiff timely replied and which the Court granted

on August 17, 2009. The Court ordered Defendant to file an Answer,

which both parties have requested be stayed pending resolution of

Defendant’s Motion to Dismiss. Consent Mot. to Stay Filing of the

Answer [Dkt. No. 30]. Defendant then filed the instant Motion on

August 25, 2009. The Motion includes two broad arguments: (1) that

all claims brought under § 1983 should be dismissed for failure to

show that the District of Columbia is liable for his injuries, and

(2) that all common law claims should be dismissed because

Plaintiff failed to provide notice of the action to the District of

Columbia, as required by local law. Defendant presents separate

argument for dismissal of each individual claim. Parties completed

briefing of the Motion to Dismiss on September 24, 2009.

-5- II. STANDARD OF REVIEW

A. Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff

need only plead “enough facts to state a claim to relief that is

plausible on its face” and to “nudge[ ][his or her] claims across

the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly,

(2007). “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.”

. A

complaint will not suffice, however, if it “tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft

v. Iqbal,

(2009) (citing Twombly,

).

Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs’ success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc.,

(D.C. Cir. 2008)(internal quotation

marks and citations omitted).

When deciding a 12(b)(6) Motion to Dismiss, “the Court may

consider only the facts alleged in the complaint, documents

attached as exhibits or incorporated by reference in the complaint

-6- and matters about which the court may take judicial notice.” Brown

v. Bureau of Prisons,

(D.D.C. 2007); see

Marshall v. Honeywell Technology Solutions Inc.,

(D.D.C. 2008)(stating that “where a document is referred to

in the complaint and is central to the plaintiff’s claim, such a

document attached to the motion papers may be considered without

converting the motion to one for summary judgment”); Baker v.

Henderson,

(D.D.C. 2001).

B. Summary Judgment

“If, on a motion under Rule 12(b)(6) . . . matters outside the

pleadings are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Rule 56.”

Fed. R. Civ. P. 12(d). “However, if the court renders its decision

without reference to the extraneous material, then the motion may

still be treated as one for dismissal.” American Sharecom, Inc. v.

Southern Bell Tel. and Tel. Co., Civ. No. 87-1334,

,

at *2 (D.D.C. Aug. 28, 1989); see Basel v. Knebel,

(D.C. Cir. 1977). “In other words, it is not the submission, but

rather the consideration, of the extraneous documents which renders

the motion one for summary judgment.” American Sharecom, Inc.,

at *2.

Summary judgment is appropriate “when the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

-7- issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A

dispute over a material fact is genuine if the evidence is such

that a reasonable [fact-finder] could return a [decision] for the

non-moving party.” Arrington v. United States,

(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). A fact is “material” if it might affect the

outcome of the action under the governing law. Liberty Lobby Inc.,

.

III. ANALYSIS

A. Defendant’s Motion to Dismiss the § 1983 Claims in Counts I, II, IV, V, and VI for Failure to State a Claim Is Granted.

Defendant argues that Plaintiff’s § 1983 claims in Counts I,

II, IV, V, and VI should be dismissed because Plaintiff fails to

allege an unconstitutional custom, practice, or policy, which is

required to establish a claim against a municipality. Monell v.

Dep’t of Soc. Servs.,

(1978).

To state a claim under § 1983, a plaintiff must allege a

deprivation of “rights, privileges, or immunities secured by the

Constitution and laws” by a person acting under color of state,

territorial, or District of Columbia law,

, or a

practice “so permanent and well settled as to constitute a ‘custom

or usage’ with force of law.” Monell,

. Under

Monell, liability for a Constitutional tort will not attach to a

-8- municipality merely because the tortfeasor is employed by the

municipality. Monell,

(rejecting respondeat

superior liability). Instead, a plaintiff must allege a specific

unconstitutional custom, practice, or policy which was the source

of the rights violation.

Plaintiff has failed to meet this bedrock requirement for

stating a § 1983 claim. Plaintiff simply restated, in each count

of his Complaint, the conduct of which he complains and alleges

that “[s]uch conduct was the official policy of the Defendant.”

For example, he alleges that “[t]he unlawful raid, warrantless

search and unlawful warrantless arrest of plaintiff,” Compl. ¶¶ 40,

74, “[t]he unlawful seizure of Plaintiff’s person and property,”

id. at ¶ 46, “[t]he unlawful denial of Plaintiff’s person and

property,” id. at ¶ 62, and the “excessive conditions” of his

release, id. at ¶ 69, were all “the official policy of the

Defendant.”

None of these phrases constitute a “policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by [Defendant],” as mandated in Monell,

. Plaintiff has failed to include any allegations whatsoever

demonstrating how the individual actions cited in his Complaint 3 constitute “the official policy” of the District of Columbia.

3 Cf. Jones v. City of Chicago,

(7th Cir. 1988), cited by Plaintiff, which held that the City’s (continued...)

-9- These are the kind of “naked assertion[s]” which both Iqbal,

, and Twombly,

, have firmly rejected.

Thus, Plaintiff has failed to satisfy a key requirement for stating

a claim under § 1983, and therefore, the Motion to Dismiss the §

1983 Claims in Counts I, II, IV, V, and VI for Failure to State a

Claim is granted.4

B. Defendant’s Motion to Dismiss Counts III and VII for Failure to Satisfy the Notice Requirement of

Is Granted.

Defendant argues that Plaintiff’s common law claims against the

District of Columbia (Counts III and VII) are barred because

Plaintiff failed to satisfy the mandatory notice requirement for

maintaining such claims against the District. Def.’s Mot. at 8.

Under the governing statute:

3 (...continued) maintenance of secret “street files” was a custom since “the practice was department-wide and of long standing, the jury was entitled to conclude that it had been consciously approved at the highest policy-making level for decisions involving the police department.” 4 Defendant also argues that a single incident such as the one alleged in this case cannot support a finding of municipal liability. Def.’s Mot. at 8 (quoting Atchinson v. District of Columbia,

(D.C. Cir. 1996)). However, “section 1983 does not require a plaintiff . . . to prove multiple incidences of misconduct if the plaintiff can prove an unconstitutional municipal policy responsible for a single instance of misconduct.” Amons v. District of Columbia,

(D.D.C. 2002) (citing City of Oklahoma v. Tuttle,

(1985)) (emphasis added). Here, Plaintiff has not alleged, no less proved, an unconstitutional municipal policy responsible for the incident of April 7, 2008, at the daycare center.

-10- An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in the regular course of duty, is a sufficient notice under this section.

.

Because this provision “represents a waiver of sovereign

immunity,” Tibbs v. Williams,

(D.D.C. 2003),

compliance is mandatory and “is to be strictly construed” against

the claimant, Gwinn v. District of Columbia,

(D.C. 1981). Thus, the “notice is fatally defective if one or more

of the statutory elements is lacking,” Boone v. District of

Columbia,

(D.D.C. 1968), and no right of

action accrues. Gwinn,

; accord Doe by Fein v.

District of Columbia,

(D.C. Cir. 1996).

Plaintiff’s attorney mailed a notice letter on September 26,

2008. Pl.’s Opp’n at 11. Defendant argues that the letter does

not indicate the location of the incident. Defendant’s Reply to

Pl.’s Opp’n at 1 (“Def.’s Reply”) [Dkt. No. 24]. Plaintiff’s

letter indicates the cause and circumstances of the incident,

references the police report of the incident, including the report

number, but does not indicate the location of the incident. Pl.’s

-11- Opp’n, Ex. B [Dkt. No. 18-3]. Failure to include the location of

the incident is usually fatal.5

However, “[t]he police report is an alternative form of notice

added to ‘[take] care of those instances in which actual notice is

had by the District of Columbia from the police department,

although technical notice may not have been filed by the person

injured.’” Miller v. Spencer,

(D.C. App. 1974),

quoting H.R. Rep. No.2010, 72d Cong., 2d Sess. 2 (1933). If the

police report contains the information required by § 12-309, the

report will satisfy the notice requirement. Id. Because Plaintiff

failed to attach the police report to his Complaint, it is

impossible to discern whether it gives sufficient information to

Defendant to comply with § 12-309. Consequently, the Court is

5 Plaintiff cites to a District of Columbia case stating that “with respect to the details of the [notice letter] precise exactness is not absolutely essential,” so long as the letter reasonably complies with the statute and “the city is not misled to its prejudice by any defects of description.” Hurd v. District of Columbia,

(D.C. 1954). However, Hurd does not excuse Plaintiff from reasonably complying with the statute. In that case, the plaintiff included a location of the underlying incident in her notice letter that was an incorrect address.

. The court excused the mistake as a reasonable attempt to comply with the statute.

. Where plaintiffs have omitted the location of the incident completely, courts have consistently held that notice was defective. Kirkland v. District of Columbia,

(D.C. Cir. 1995); Hunter v. District of Columbia,

(D.C. Cir. 1991).

-12- constrained to grant the Motion to Dismiss Counts III and VII on

notice grounds.6

C. Defendant’s Motion to Dismiss Count I for Lack of Standing to Contest the Search at the Daycare Center Is Granted.

In Count I, Plaintiff asserts a §1983 claim against Defendant

for violation of his Fourth Amendment right against unreasonable

searches and seizures. Const. Amend. IV; Compl. ¶ 34. Plaintiff

argues that his arrest was unlawful, as it was made without either

a warrant or probable cause, during an “unlawful raid and

warrantless search of the daycare.” Compl. ¶¶ 37-38. Defendant

makes two arguments for dismissal of Count I.

Defendant argues that Plaintiff lacks standing to challenge the

search at the daycare center because he did not have a reasonable

expectation of privacy, either because he was not the owner or

operator of the commercial property, or because he was only

authorized to work at the location printed on his badge, which was

not that of the daycare center. Def.’s Mot. at 9-11.

Defendant relies on a Supreme Court case, New York v. Burger,

(1987), which states that the owner or operator of

commercial property has a reasonable expectation of privacy. This

reliance on Burger is misplaced. That case did not hold that the

6 As noted earlier, Defendant has raised separate additional arguments for each claim in its Motion to Dismiss. For purposes of judicial efficiency should any of the rulings herein be overturned on appeal, the Court will address all of those arguments.

-13- owner or operator of commercial property is the only person who may

have a reasonable expectation of property at a workplace.

In a case decided the same year as Burger, the Supreme Court

reaffirmed its prior rulings that “[w]ithin the workplace context

. . . employees may have a reasonable expectation of privacy

against intrusion by police.” O’Connor v. Ortega,

(1987). The Court explained that an employee’s expectation of

privacy is limited by the “operational realities of the workplace,”

, and “must be assessed in the context of the employment

relation.”

The Court went on to say that “[g]iven the great

variety of work environments in the public sector, the question

whether an employee has a reasonable expectation of privacy must be

addressed on a case-by-case basis.”

. See Gatlin v.

United States,

(D.C. 2003)(finding no

reasonable expectation of privacy when police officers entered

areas of a charter school, including the main hallway, foyer, and

outer portion of the main office, because the school was publicly

funded and these areas were open to employees, students, and the

public).

Here, as in Gatlin, the daycare center where Plaintiff was on

duty is a part of the District of Columbia public school system.

See “District of Columbia Public Schools, Pre-School (PS), Pre-

Kindergarten (PK) and Head Start: A Guide for Parents,” available

at http://dcps.dc.gov/DCPS/Learn+About+Schools/Pre-schools%2C+Pre-

-14- Kindergarten%2C+and+Head+Start (explaining that enrollment in a

Head Start school is an option within the District of Columbia

public school system). When Plaintiff was on duty at the daycare

center, entry by students, daycare employees, parents, and the

public could be reasonably expected. The parties do not dispute

that Plaintiff was standing in the doorway when the MPD officers

arrived and approached him. Def.’s Mot. at 1; Compl. ¶ 14. Based

on these facts and the reasoning in Gatlin, the Court concludes

that Plaintiff did not enjoy a reasonable expectation of privacy

while on duty at the daycare center. Consequently, Plaintiff

cannot contest the search because his Fourth Amendment right was

not implicated in terms of the legality of the administrative

search, Thomas J. Brown v. United States,

(D.C.

1993), and the Motion to Dismiss Count I for lack of standing to

contest the search at the daycare center is granted.

D. Defendant’s Motion to Dismiss Count I for Unlawful Arrest Is Denied.

Where an arrest is made without a warrant, it must be supported

by probable cause. Wardlaw v. Pickett,

(D.C.

Cir. 1993). Probable cause is determined on the basis of the

“totality of the circumstances,” see Illinois v. Gates,

(1983), which requires that “the police had enough

information to warrant a [person] of reasonable caution in the

belief that a crime has been committed and that the person arrested

has committed it,” Barham v. Ramsey,

(D.C. Cir.

-15- 2006) (internal quotations omitted); see Gerstein v. Pugh,

(1975)(stating that probable cause to arrest exists when

the facts and circumstances are sufficient to warrant a prudent

person to believe that the individual has committed an offense).

The parties do not dispute that Plaintiff was arrested without

a warrant. Compl. ¶ 37. Plaintiff, however, asserts that he was

arrested without probable cause,

because he was on duty at the

daycare center “with the knowledge, consent and authority of

[SOMB],” id. at ¶ 14, because his “firearm was . . . registered

with [MPD],” id. at ¶ 24, and because Sgt. Moye, the supervising

officer at the arrest, knew these facts at the time of the arrest,

id. at ¶¶ 22, 24. Defendant argues that the officers had probable

cause to arrest, based on the their finding that he carried an

unregistered gun. Def.’s Mot. at 10. Whether the officers had

probable cause to arrest, however, is a factual issue,

inappropriate for resolution at this time.7 The Court concludes

that Plaintiff has sufficiently stated the legal elements of an

unlawful arrest claim in his Complaint, and has supported them with

sufficient facts to make the claim plausible. See Twombly, 550

7 The Court declines to consider the affidavits parties have submitted regarding probable cause because discovery is required to resolve this issue. See Baker,

; American Sharecom,

, at *2 (Aug. 28, 1989); Basel,

. Delaying summary judgment will not prejudice the parties in any way.

-16- U.S. at 555. Therefore, Defendant’s Motion to Dismiss Count I for

unlawful arrest is denied.

E. Defendant’s Motion to Dismiss Count II for Failure to State a Fifth Amendment Due Process Claim for Deprivation of Personal Property Is Granted.

In Count II of the Complaint, Plaintiff asserts a § 1983 claim

for violation of his Fifth Amendment right against deprivation “of

life, liberty, or property without due process of law.” U.S.

Const. Amend. V; Compl. ¶ 43. Specifically, Plaintiff alleges that

his personal property was unlawfully seized during the arrest and

never returned, and that the arrest constituted an unlawful seizure

of his person. Compl. ¶ 44.

Defendant argues that Plaintiff “seems to assert a Fourth

Amendment unlawful seizure claim” even though he identifies Count

II as a Fifth Amendment claim. Def.’s Mot. at 11. The Supreme

Court has made clear that Government seizure of personal property

can violate both the Fourth and Fifth Amendments. United States v.

James Daniel Good Real Property,

(1993) (holding

that seizures of real property for purposes of civil forfeiture are

governed by both the Fourth and the Fifth Amendments). Therefore,

Plaintiff has stated a claim under the Fifth Amendment for the

personal property seized at his arrest.

To state a Fifth Amendment Due Process violation, “Plaintiff

must first have ‘a property . . . interest that triggers Fifth

Amendment due process protection” which arises “from ‘state

-17- law-rules or understandings that secure certain benefits and that

support claims of entitlement to those benefits.’” Davis & Assoc.,

Inc. V. District of Columbia,

(D.D.C.

2007)(quoting C & E Serv. Inc. of Wash. v. District of Columbia

Water and Sewer Auth.,

(D.C. Cir. 2002) and Bd.

Of Regents of State Colleges v. Roth,

(1972)).

However, the Plaintiff does not identify what property was seized.

He argues that “enumeration of such property is a proper subject

for discovery, not a Motion to Dismiss.” Pl.’s Opp’n at 19.

However, Plaintiff must demonstrate what property interest he has

that triggers Fifth Amendment protection in order to state a claim,

and has failed to do so. Davis & Assoc.,

;

see Twombly,

(requiring “more than labels and

conclusions” to state a claim).8 Consequently, the Defendant’s

Motion to Dismiss Count II for failure to state a Fifth Amendment

due process claim is granted.

F. Defendant’s Motion to Dismiss Count III for Malicious Prosecution Is Granted.

Plaintiff asserts a malicious prosecution claim in Count III,

based on the criminal suit initiated against him for possession of

an unregistered handgun. His basic argument is that the

prosecution was initiated against him with malice because Defendant

8 Although Plaintiff mentions the seizure of his person in Count II, he only states a claim for deprivation of a property interest. Thus, the Court assumes that Plaintiff did not intend to also contest his arrest in Count II.

-18- knew that the allegations against him contained in Sgt. Moy’s

affidavit, were false. Compl. ¶¶ 19-26, 48-54.

To state a claim for malicious prosecution under District of

Columbia law, Plaintiff must show “(1) termination of the

underlying suit in plaintiff's favor; (2) malice on the part of the

defendant; (3) lack of probable cause for the underlying suit; and

(4) special injury occasioned by plaintiff as a result of the

original action.” Pitt v. District of Columbia,

(D.C. Cir. 2007)(citing Morowitz v. Marvel,

(D.C.

1980)).

Defendant challenges Count III on three grounds, the first of

which is dispositive. Defendant argues that Plaintiff cannot

establish favorable termination of the underlying criminal suit

because dismissal of Plaintiff’s criminal suit was not on the

merits. Under District of Columbia law, “the termination must

reflect on the merits of the underlying action”. Brown v. Carr,

(D.C. App. 1986). In Brown, the District of

Columbia Court of Appeals relied on the approach taken by the

California state courts and cited with approval their reasoning.

“If [the termination] is of such a nature as to indicate the

innocence of the accused, it is a favorable termination sufficient

to satisfy the requirement. If, however, the dismissal is on

technical grounds, for procedural reasons, . . . it does not

-19- constitute favorable termination.” Brown,

(quoting Lackner v. LaCroix,

,(1979)).

Here, Defendant submitted the District of Columbia Superior

Court docket entry showing that the prosecutor dismissed

Plaintiff’s criminal charges. Def’s Mot., Ex. F [Dkt. No. 17-6].

The document does not state any reason for termination of the

prosecution. However, under District of Columbia law, “[a]

dismissal shall be without prejudice unless otherwise stated.”

D.C. R. Crim. P. 48(a). “[A] dismissal without prejudice ‘renders

the proceedings a nullity and leave[s] the parties as if the action

had never been brought.’” Thoubboron v. Ford Motor Company,

(D.C. 2002) (quoting Bonneville Assocs. Ltd. v.

Barram,

(Fed. Cir. 1999) (citations omitted).

To satisfy this essential element of malicious prosecution,

Plaintiff bears the burden of alleging that his charges were

dismissed with prejudice. See United States v. Jackson,

, 1223 n. 29 (D.C. 1987) (stating that plaintiff failed to show

that certain charges against him were dismissed with prejudice

where “[t]he docket entry . . . simply reads that [the count in

question] was dismissed by the government.”). Plaintiff has failed

to allege any facts that, if proven, would demonstrate that

termination was on the merits. Without a showing of favorable

termination, Plaintiff fails to state a claim for malicious

-20- prosecution. Therefore, the Motion to Dismiss Count III is

granted.

G. Defendant’s Motion to Dismiss Count IV, Alleging Deprivation of a Property Interest, Is Denied.

In Count IV of the Complaint, Harris asserts a § 1983 claim for

deprivation of a property interest, stemming from revocation of his

authority to work as a Special Police Officer and from a later 20-

day suspension of his authority to work as a Special Police

Officer.9 Compl. ¶¶ 56-57.10 Defendant argues that Count IV must

be dismissed because Plaintiff failed to exhaust the administrative

remedies made available to him in his suspension letter. That

letter informed him he had the opportunity to “appeal [the]

decision in writing to the Office of the Chief of Police . . .

within twenty (20) days upon receipt of this notice.” Def.’s Mot.

at 15-16; Def.’s Mot., Ex. G [Dkt. No. 17-7].

Plaintiff maintains that he was offered no “meaningful

opportunity to contest or appeal” his suspension. Compl. ¶ 60. He

further argues that the appeals process offered cannot “provide a

sufficient remedy such as monetary damages,” that “the Attorney

9 The precise extent of Plaintiff’s injuries resulting from revocation/suspension of his work authorization is unclear. Plaintiff indicates that he was sent two letters, one revoking his authority to work indefinitely, and one suspending him from work for twenty days. Compl. ¶¶ 28, 32, 56-57. Defendant consistently refers to the action against Plaintiff as a suspension, and provided a copy of the July 30, 2008 letter suspending him for twenty days. Def.’s Mot. at 15-16, Ex. G. 10 See Footnote 5, supra.

-21- General offers no authority or citation . . . which authorizes or

mandates the appeals process,” and that because Plaintiff was

arrested by the same officials to which he was required to report

his arrest, his suspension was a mere “pretext.” Pl.’s Opp’n at

21-22 and n.5.

“State administrative exhaustion requirements” like the ones

here “are treated as non-jurisdictional by federal courts, meaning

that the exhaustion requirement is a prudential doctrine exercised

as a matter of judicial discretion.” Washington v. District of

Columbia,

(D.D.C. 2008). In such

instances, “[a] plaintiff’s failure to satisfy [the exhaustion

requirement] . . . constitutes a failure to sufficiently plead a

necessary element of a federal cause of action.” Hidalgo v. FBI,

(D.C. Cir. 2003); Washington,

. To enforce the requirement, the Court must balance

Plaintiff’s interest in immediate judicial relief against the

interests promoted by the exhaustion requirement, such as agency

autonomy and judicial efficiency. Washington,

.

Exhaustion is not typically required for § 1983 actions.

Milton S. Kronheim & Co. v. District of Columbia,

(D.D.C. 1995); Ifill v. District of Columbia,

(D.C. 1995). However, an exception exists for procedural Due

Process claims, at least where “an alleged constitutional violation

-22- is intertwined with a statutory one,” and complete relief can be

provided by the administrative process. Nat’l Treasury Employees

Union v. King,

, 243 (D.C. Cir. 1992); Washington,

; Hoey, 540 F. Supp. 2d at 226-27. Relief, for

purposes of the exhaustion requirement, is not “complete” unless it

is “sufficient to right the wrong.” Randolph-Sheppard Vendors of

Am. v. Weinberger,

(D.C. Cir. 1986). In

determining what remedy is sufficient, the reviewing court

considers whether “the administrative proceeding affords the

claimant a recovery commensurate with his or her remedy, regardless

of whether he or she might recover more by filing a federal-law

claim in federal court.” Johnson v. District of Columbia,

, 51 n. 9 (D.D.C. 2005); Washington,

.

Plaintiff seeks monetary damages in his Complaint and alleges

that the Police Chief is not authorized to award them. The

Defendant does not deny that allegation. Consequently, the relief

sought will not be complete because it is not “sufficient to right

the wrong,” and Defendant’s Motion to Dismiss Count IV, for failure

to exhaust administrative remedies, is denied.

H. Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment Claim for Excessive Conditions of Release, Is Granted.

In Count V, Plaintiff asserts a ¶ 1983 claim for violation of

his Eighth Amendment right against excessive bail. Const. Am.

-23- VIII; Compl. ¶ 65. Specifically, Plaintiff argues that the

condition of his release--that he not possess a firearm in the

District of Columbia--was excessive because it was based on Sgt.

Moye’s knowingly false affidavit. Compl. ¶ 66; Def.’s Mot., Ex. F.

Defendant argues that Plaintiff fails to assert an Eighth

Amendment violation. While excessive release conditions can form

the basis of an Eighth Amendment claim, United States v. Salerno,

(1987), there appears to be a paucity of law

on the subject. The Sixth Circuit, in Bacon v. Patera,

(6th Cir. 1985), explained why:

Most eighth amendment claims have involved the constitutionality of state treatment for individuals already convicted of crimes. Those few cases finding eighth amendment violations in pre-conviction conduct by the state have all involved the infliction of some kind of physical abuse. It would require a tremendous expansion of eighth amendment doctrine to hold that simply misuse of the state’s prosecutorial machinery constitutes the type of “cruel and unusual punishment” that the eighth amendment was meant to prohibit (internal citations omitted).

Plaintiff claims no physical abuse whatsoever; he simply alleges a

misuse of Defendant’s prosecutorial authority. Such allegations do

not constitute an Eighth Amendment violation. Therefore,

Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment

Claim for Excessive Conditions of Release, is granted.

-24- I. Defendant’s Motion to Dismiss Count VI, Alleging Excessive Force During Plaintiff’s Arrest, Is Granted.

Plaintiff asserts a § 1983 claim in Count VI that he suffered

deprivation of a liberty interest in “[t]he raid and search without

a warrant of the Plaintiff’s workplace,” which constituted

excessive force. Compl. ¶ 72.

Excessive force claims are examined under the Fourth Amendment

reasonableness standard, to determine “whether the officers'

actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying

intent or motivation.” Scott v. District of Columbia,

(D.C. Cir. 1996)(quoting Graham v. Connor,

(1989)). “An officer will be found to have used excessive

force only ‘if the force used was so excessive that no reasonable

officer could have believed in the lawfulness of his actions.’”

Oberwetter v. Hilliard, Civ. No. 09-0588,

(D.D.C. Jan. 25, 2010)(quoting Rogala v. Dist. of Columbia,

(D.C. Cir. 1998)). Under the “objective

reasonableness” standard officers are authorized to use “some

degree of physical coercion or threat thereof” during the course of

an arrest, and “not every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers,” violates the

Fourth Amendment. Graham,

; Hirpassa, 648 F.

Supp. 2d at 151.

-25- Defendant argues that Plaintiff’s claim fails because he did

not allege injury or physical contact of any kind in his Complaint.

Def.’s Mot. at 17. Plaintiff’s only response is to allege facts in

his Opposition--not his Complaint--which he believes would

adequately flesh out his Count VI claim. This he cannot do. When

considering a 12(b)(6) Motion to Dismiss, the Court may only

consider those facts alleged in the Complaint. Henthorn v. Dep’t

of the Navy,

(D.C. Cir. 1994); Clark v. Flach,

, 6 n.6 (D.D.C. 2009); Alexander v. Wash. Gas Light

Co.,

(D.D.C. 2006).

The only facts Plaintiff alleges in the Complaint are that

twelve officers conducted the arrest, with guns drawn. Compl.

¶ 72. Plaintiff includes no allegation of injury, apart from a

deprivation “of his rights, privileges, and immunities.” Id. at ¶

73. Without any allegation that Plaintiff suffered an injury

resulting from the force used, or any facts indicating physical

contact that could support a finding of excessive force, Plaintiff

has not stated a claim for excessive force. See Wasserman v.

Rodacker,

(D.C. Cir. 2009)(stating that lack of

“bruise or injury, . . . tends to confirm that [the arresting

officer] did not use more force than reasonably appeared

necessary”); Oberwetter,

(dismissing an

excessive force claim where plaintiff described the physical force

used in an arrest but failed to allege injury arising from it);

-26- Hirpassa, 648 F. Supp. 2d at 151 (dismissing a claim for excessive

force where the claims were “not supported by any allegations as to

the actual force used, physical contact between the parties, or

physical harm or injury resulting from the arrest”). Therefore,

Defendant’s Motion to Dismiss Count VI, alleging excessive force

during Plaintiff’s arrest is granted.

J. Defendant’s Motion to Dismiss Count VII, Alleging Intentional Infliction of Emotional Distress, Is Granted.

Plaintiff asserts a common law claim in Count VII for

Intentional Infliction of Emotional Distress (“IIED”). Compl. ¶¶

76-78. Defendant argues that the facts in this case do not support

a finding of outrageous conduct, and therefore Plaintiff’s claim

must be dismissed. Def.’s Mot. at 18.

“To establish a cause of action for intentional infliction of

emotional distress a plaintiff must show 1) extreme and outrageous

conduct on the part of the defendant which 2) either intentionally

or recklessly 3) causes the plaintiff severe emotional distress.”

Henson v. W.H.H. Trice and Co.,

(D.D.C.

2006)(citing Larijani v. Georgetown Univ.,

(D.C.

2002)). To assess whether Plaintiff has stated a claim, the Court

must consider “whether the defendant’s conduct may be regarded as

so outrageous as to permit recovery.” Amons,

(quoting Abourezk v. New York Airlines, Inc.,

(D.C. Cir. 1990)). Outrageous conduct is conduct “so

outrageous in character, and so extreme in degree, as to go beyond

-27- all possible bounds of decency and to be regarded as atrocious, and

utterly intolerable in a civilized community.”

Plaintiff alleges that he was arrested without a warrant during

a search at the daycare center, that excessive force was used by 12

officers with guns drawn, that he was detained overnight, and that

Sgt. Moye falsified his affidavit in support of a “Gerstein

Proffer.” See Gerstein,

. Compl. ¶¶ 13, 15, 20.11

These facts cannot in any way compare with the outrageousness

of the facts alleged in Amons. The only fact alleged about which

some question might be raised is the allegation that Sgt. Moye

intentionally lied in his affidavit. The lie alleged in the

Complaint is that Sgt. Moye stated in his affidavit that he had

conducted “an administrative inspection of the daycare center”

when, according to Plaintiff, he had “conducted a raid and

warrantless search of the daycare center with more than a dozen

officers, some with their guns drawn.” Compl. ¶ 20. Assuming for

the purposes of this Motion to Dismiss that this allegation can be

11 As noted earlier, the Court will not consider the supporting facts Plaintiff alleges only in his Opposition brief. When considering a 12(b)(6) Motion to Dismiss, the Court may only consider those facts alleged in the Complaint. Henthorn,

; Clark,

n. 6; Alexander,

. Because Plaintiff has not yet had a “reasonable opportunity” for discovery, the Court also declines to consider the affidavits Defendant has submitted or to convert the Motion to Dismiss Count VII to a Motion for Summary Judgment. Baker,

(requiring that “[w]hen a district court converts a Rule 12(b)(6) motion to one for summary judgment, it must allow all parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56, and a chance to pursue reasonable discovery”).

-28- proven, it is not, as a matter of law, “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.” Abourezk v. New York Airlines, Inc.,

(D.C. Cir. 1990). Therefore, Defendant’s

Motion to Dismiss Count VII, alleging intentional infliction of

emotional distress, is granted.

IV. CONCLUSION

Upon consideration of the Motion, Opposition, Reply, the entire

record herein, and for the reasons stated above, Defendant’s Motion

to Dismiss is granted. An Order shall issue with this Memorandum

Opinion.

March 22, 2010 /s/ Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

-29-