UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LEROY AND THOMASINE WHITE as Personal Representatives of the Estate of Kellen Anthony White,

Plaintiffs, v. Civil Action No. 10-01477 (JDB) UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION

This case arises from the unfortunate death of Kellen Anthony White, who was shot and

killed by United States Capitol Police ("USCP") Officers Richard Greenwell and Matthew

Shelfo. White's parents, Leroy and Thomasine White ("plaintiffs"), now seek leave to file a

second amended complaint in which they request damages under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics,

(1971),

(3), and the Federal

Tort Claims Act ("FTCA"). Plaintiffs assert claims under these theories against the USCP,

USCP Chief Morse, USCP Officers Greenwell and Shelfo, several unidentified USCP officers,

the United States, the District of Columbia Metropolitan Police Department ("MPD"), MPD

Chief Lanier, and several unidentified MPD officers. The federal defendants "do not object to

the proposed Bivens claims against [USCP] Officers Greenwell and Shelfo, or the proposed tort

claims against the United States." Defs.' Partial Opp'n to Pls.' Second Mot. for Leave to Amend.

Compl. ("Defs.' Mot.") [Docket Entry 12] at 1. However, they do object to plaintiffs' "proposed

Bivens and 1985(3) claims against proposed defendant Morse and the USCP, and the proposed

-1- 1985(3) claims against the other Federal Defendants."

. For the reasons detailed below,

the Court will grant in part and deny in part plaintiffs' motion for leave to file a second amended

complaint.

BACKGROUND

On July 15, 2009, around 5:15 p.m., Kellen Anthony White was driving in the 400 block

of Second Street Northeast in the District of Columbia. Second Am. Compl. [Docket Entry 10]

¶ 22. Plaintiffs allege that an officer attempted to stop White due to a problem with his vehicle's

tags.

. According to plaintiffs, White complied with the stop.

. As he drove

away from the stop, however, White was "immediately chased by several USCP officers,

including Defendants Greenwell [and] Shelfo."

. When White's "vehicle came to rest,

. . . White exited the vehicle through the driver's side front window [and] Defendants Greenwell,

Shelfo, and Unidentified Officers shot and killed [him], in a hail of approximately twelve or

more bullets."

. White was taken to Washington Hospital Center where he died at

approximately 6:00 p.m.

.

In their proposed second amended complaint, plaintiffs seek damages through the

following counts: (I) under Bivens, from USCP Officers Greenwell and Shelfo and several

unidentified officers for their alleged use of excessive force; (II) under Bivens, from the USCP,

USCP Chief Morse, USCP Officers Greenwell and Shelfo ("all named USCP defendants"), and

several unidentified officers for unreasonable seizure of White; (III) under both Bivens and

§ 1985(3), from all named USCP defendants and several unidentified officers for conspiring to

deprive White of his constitutional rights by shooting him and falsely claiming that he was

armed; (IV) under both Bivens and § 1985(3) from all named USCP defendants and several

-2- unidentified officers for conspiring to engage in a pattern and practice of racial discrimination;

(V) under § 1985(3), from all named USCP defendants, the MPD, MPD Chief Lanier, and

several unidentified officers, for defamation by falsely claiming White brandished a gun; (VI)

under the FTCA, from the United States, for White's pain, suffering, and medical expenses; (VII)

under the FTCA, from the United States, for White's wrongful death; and (VIII) under the FTCA,

from the United States, for the assault and battery of White.

Again, defendants "do not object to the proposed Bivens claims against [USCP] Officers

Greenwell and Shelfo, or the proposed tort claims against the United States." Defs.' Mot. 1.

Accordingly, there are no objections to Counts I and II as against USCP officers Greenwell and

Shelfo, and Counts VI, VII, and VIII against the United States. The USCP and USCP Chief

Morse, however, contend that there is no subject matter jurisdiction for the claims against them

(Counts II–V) because they are barred by sovereign immunity. Additionally, USCP Officers

Greenwell and Shelfo object to the § 1985(3) conspiracy claims against them (Counts III–V) as

futile because they do not allege sufficient facts to state a claim of conspiracy.1

STANDARD OF REVIEW

Federal Rule of Civil Procedure 15(a)(2) instructs courts to "freely give" leave to amend a

complaint "when justice so requires." "If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim

1 The USCP filed a motion to dismiss it as a defendant following plaintiffs' first amended complaint, which asserted claims against the USCP based solely on the FTCA. USCP Mot. to Dismiss [Docket Entry 7]. Plaintiffs' proposed second amended complaint no longer includes any FTCA claim against the USCP. Thus, in partially granting plaintiffs' motion for leave to file their second amended complaint, the Court need not rule on USCP's motion to dismiss as it is no longer responsive to plaintiffs' claims. Moreover, the Court is not allowing plaintiffs to include the USCP in any new claims in their second amended complaint.

-3- on the merits." Foman v. Davis,

(1962). A court may, however, "deny a

motion to amend on grounds of futility where the proposed pleading would not survive a motion

to dismiss." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ.,

(D.C. Cir.

2004); see also Foman,

. The Court therefore must assess whether plaintiffs'

claims in their proposed second amended complaint would survive a motion to dismiss for lack

of subject-matter jurisdiction or for failure to state a claim.

Under Fed. R. Civ. P. 12(b)(1), "the plaintiff bears the burden of establishing that the

court has jurisdiction." Grand Lodge of Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). A court must accept as true all the factual allegations contained in the

complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff should

receive the benefit of all favorable inferences that can be drawn from the alleged facts. See

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,

,

(1993); EEOC v. St. Francis Xavier Parochial Sch.,

, 624-25 n.3 (D.C. Cir. 1997).

However, "the court need not accept inferences drawn by plaintiffs if such inferences are

unsupported by the allegations set out in the complaint. Nor must the court accept legal

conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994).

With respect to a motion to dismiss for failure to state a claim, all that the Federal Rules

of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the

claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). Although "detailed

-4- factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide

the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and

conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly,

. "To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). A complaint is plausible on its face

"when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Iqbal,

. This amounts

to a "two-pronged approach" under which a court first identifies the factual allegations entitled to

an assumption of truth and then determines "whether they plausibly give rise to an entitlement to

relief."

.

The notice pleading rules are not meant to impose a great burden on a plaintiff. See Dura

Pharm., Inc. v. Broudo,

(2005); see also Swierkiewicz v. Sorema N.A.,

(2002). When the sufficiency of a complaint is challenged by a motion to

dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should

be liberally construed in his or her favor. See Leatherman,

; Phillips v. Bureau of

Prisons,

(D.C. Cir. 1979); see also Erickson v. Pardus,

(2007)

(citing Twombly,

). The plaintiff must be given every favorable inference that

may be drawn from the allegations of fact. See Scheuer v. Rhodes,

(1974);

Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). However, "the court

need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set

out in the complaint." Kowal,

. Nor need the court accept "a legal conclusion

-5- couched as a factual allegation," or a "naked assertion[] [of unlawful misconduct] devoid of

further factual enhancement." Iqbal,

(internal quotation marks omitted).

DISCUSSION

Because defendants "do not object to the proposed Bivens claims against [USCP]

Officers Greenwell and Shelfo, or the proposed tort claims against the United States," Defs.' Mot.

1, the only issues remaining before the Court are 1) whether sovereign immunity precludes this

Court from exercising subject-matter jurisdiction over plaintiffs' claims against the USCP and

USCP Chief Morse and 2) whether plaintiffs have plead sufficient facts to state a claim under

§ 1985(3). The Court will address each of these issues in turn.

I. USCP's and USCP Chief Morse's Assertion of Sovereign Immunity

Defendants USCP and USCP Chief Morse contend that the doctrine of sovereign

immunity bars plaintiffs' Bivens and § 1985(3) claims against them. Sovereign immunity is a

jurisdictional issue. Brown v. Sec'y of Army,

(D.C. Cir. 1996). The doctrine

"bars all suits against the United States, its agencies, and federal employees in their official

capacities, except where there has been a statutory waiver of immunity." Fletcher v. Dist. of

Columbia,

(D.D.C. 2007). "[I]t is well settled that Congress has not

waived immunity for suits seeking monetary damages that arise under the Constitution." Scinto

v. Fed. Bureau of Prisons,

(D.D.C. 2009) (dismissing Bivens action against

federal agency for lack of jurisdiction on the basis of sovereign immunity) (internal citations

omitted). Similarly, § 1985(3) does not "waive the United States' sovereign immunity." Dye v.

United States,

(D.D.C. 2007); see Hohri v. United States,

,

245 n.43 (D.C. Cir. 1986) (holding that provisions of § 1985, "by their terms, do not apply to

-6- actions against the United States"). Moreover, because plaintiffs seek to sue USCP Chief Morse

only "in his official capacity," Second Amend. Compl. ¶ 14, he, too, is entitled to sovereign

immunity. As in suits against agencies, sovereign immunity "bar[s] suits for money damages

against officials in their official capacity absent a specific waiver by the government." Clark v.

Library of Cong.,

(D.C. Cir. 1984). Because the United States has not waived

its sovereign immunity with regards to Bivens or § 1985(3) claims, the Court will deny plaintiffs'

motion to amend insofar as plaintiffs' proposed second amended complaint attempts to raise such

claims against the USCP and USCP Chief Morse.

II. Section 1985(3) Claims

In Counts III, IV, and V, plaintiffs contend that USCP Officers Shelfo and Greenwell

conspired to violate White's constitutional rights. In Counts III and IV, plaintiffs allege, under

both § 1985(3) and Bivens, that defendants conspired to deprive White of his constitutional

rights and conspired to engage in a pattern and practice of racial discrimination. And in Count V,

plaintiffs allege that USCP officers Shelfo and Greenwell, in addition to the MPD, defamed

White by falsely claiming that he possessed a gun.

In order to state a claim under § 1985(3), a defendant must allege:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, . . . and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in her person or property or deprived of any right or privilege of a citizen of the United States.

Atherton v. D.C. Office of Mayor,

(D.C. Cir. 2009). Plaintiffs fail at the very

first step in each of these counts because they do not allege any "facts to support an agreement

. . . between the defendants to violate [White's] rights." Bush v. Butler,

, 68

-7- (D.D.C. 2007); see also Brady v. Livingood,

(D.D.C. 2004) (dismissing

claim where plaintiff merely alleged that his former employer "colluded" with the Department of

Education to keep him underemployed, without putting forth "any facts showing the existence or

establishment of an agreement"); Estate of Phillips v. Dist. of Columbia,

(D.D.C. 2003), rev'd in part on other grounds,

(D.C. Cir. 2006) (dismissing

conspiracy claim where plaintiffs failed to specify how the defendants "acted in concert"). The

fact that plaintiffs allege these conspiracy claims in Counts III and IV under Bivens, in addition

to § 1985(3), does not cure this deficiency. Plaintiffs clearly state that these Bivens claims are

based upon a conspiracy, and yet they fail to allege any facts showing that there ever was any

agreement.

A. Count III

"To survive a motion to dismiss a Section 1985 claim, plaintiff must set forth more than

conclusory allegations of an agreement." Bush v. Butler,

; cf. Twombly,

("[A] conclusory allegation of agreement at some unidentified point does not

supply facts adequate to show illegality."). Here, however, plaintiffs offer only the conclusory

allegation that defendants "conspired to deprive" White of his rights "by shooting him to death

and claiming that he was armed when he was not." Second Am. Compl. ¶ 67. That defendants

shot White and falsely claimed he was armed would not show any agreement between the

defendants. Nor does the bald allegation that a "conspiracy agreement" can be "implied through

Defendant USCP's pattern and practice of depriving African Americans of their constitutional

rights through the unreasonable use of excessive force and/or unlawful deadly force." Id. ¶ 68.

Rather than alleging any actual agreement at a particular time, plaintiffs only point to

-8- facts which are "merely consistent with" a conspiracy. Twombly,

. These alleged

facts, however, "could just as well be" the result of "independent action," absent any agreement

between defendants.

Specifically, plaintiffs fail to "allege the existence of any events,

conversations, or documents indicating there was an agreement between the defendants to violate

[White's] rights." Bush v. Butler,

.

B. Count IV

Count IV similarly fails to point to any actual agreement. Plaintiffs assert that defendants

"engaged in a conspiracy to permit a pattern" of depriving African Americans of their rights.

Second Am. Compl. ¶ 71. To support this "conclusory allegation" of conspiracy, plaintiffs again

offer allegations that are "merely consistent with" a conspiracy. Twombly,

.

They allege that defendants conspired by "discriminating within [the USCP's] ranks," "failing to

train its officers," and "failing to take remedial action." Second Am. Compl. ¶ 71. These are all

issues internal to the USCP generally. And while such problems may be attributable to a

conspiracy, plaintiffs do not place these allegations "in a context that raises a suggestion of a

preceding agreement" among the defendants in this action. Twombly,

.

Plaintiffs further allege that "[d]efendants USCP and Morse engaged in a conspiracy with

Defendants Greenwell, Shelfo and Unidentified Officers by establishing and condoning a pattern

and practice of depriving African Americans of their constitutional rights." Second Am. Compl.

¶ 71. From this broad allegation, it is difficult to discern whether plaintiffs mean that USCP

Officers Greenwell and Shelfo also conspired to "establish[] and condon[e]" this pattern or

merely that the USCP and its Chief are also generally involved in violating White's rights by

"establishing and condoning" this pattern.

Nevertheless, the allegation is merely "a

-9- conclusory allegation of agreement at some unidentified point." Twombly,

.

Plaintiffs fail "[t]o state sufficient facts to support an agreement" because they do not "allege the

existence of any events, conversations, or documents indicating there was an agreement." Bush

v. Butler,

.

C. Count V

In Count V, plaintiffs allege a "conspiracy to defame Kellen Anthony White" under

§ 1985(3). According to plaintiffs, defendants "conspired to cover-up the fact that Mr. White

was shot to death without cause by libelously claiming that Mr. White possessed a gun." Second

Am. Compl. ¶ 74. Plaintiffs, however, do not provide any facts to support the existence of an

agreement to defame or libel White. Rather, plaintiffs' only support for this allegation is alleged

internal discrimination within the USCP. Second Am. Compl. ¶¶ 76–79. Such internal

discrimination, however, is irrelevant to any alleged conspiracy to discriminate against outside

parties, such as White.2 Moreover, even if plaintiffs were to allege sufficient facts of conspiracy

in this Count, defamation is not actionable under § 1985(3). Section 1985(3) requires a

conspiracy "for the purpose of depriving, either directly or indirectly, any person . . . of the equal

protection of the laws." Plaintiffs do not maintain, and the Court does not know of, any theory

under which an individual is constitutionally protected against defamation.

CONCLUSION

For the reasons explained above, the Court will grant plaintiffs' motion for leave to file

2 In plaintiffs' proposed second amended complaint, they only assert a claim against the MPD and MPD Chief Lanier in Count V. Thus, in denying plaintiffs' motion for leave to amend their complaint as to proposed Count V, the Court is not allowing them to assert any claims against the MPD or MPD Chief Lanier.

-10- their proposed second amended complaint, except as to Counts III, IV, and V and the portion of

Count II naming the USCP and USCP Chief Morse as defendants. A separate Order

accompanies this Memorandum Opinion.

/s/ JOHN D. BATES United States District Judge

Dated: June 14, 2011

-11-