UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JOEL THOMAS HALL, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-0970 (RBW) ) CATHY LANIER et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

In this civil rights action, the plaintiff sues the District of Columbia (“District”), the

Metropolitan Police Department (“MPD”), MPD Chief Cathy Lanier and MPD Officers Jose

Freeman, Venson Wytch, Donnay Davis,1 Raymond Hawkins, Michael Lynch and “[o]ther

[u]nnamed [MPD] [o]fficers” under

, 1985(3), 1986 (2006) and for various

common law torts. The plaintiff alleges that between June 2004 and March 2007, MPD officers

“repeatedly subjected [him] to . . . threats of bodily injury, assaults, battery, illegal detainments,

illegal searches and seizures and violations of his right to speech[.]” Second Amended

Complaint (“Am. Compl.”) [Dkt. No. 40] ¶ 11. He seeks monetary damages exceeding $2.5

million.

.

Pending before the Court is the “Defendants’ Motion to Partially Dismiss the Amended

Complaint” (“Mot.”) [Dkt. No. 66], as to Counts 1, 2, 3, 4, 6, 7, 9 and 15.2 In addition, the

1 The Court granted Defendant Davis’ motion to dismiss by Order of April 22, 2010 [Dkt. No. 63]. 2 As will become apparent, the defendants have mistakenly identified the defamation claim they seek to dismiss as Count 14. Count 14 for False Arrest, see Second Amended Complaint at 60, is not challenged in the pending motion to dismiss. defendants move to dismiss the claims against Chief Lanier for conduct preceding January 2,

2007, and those against her in her official capacity. Mot. at 1. Upon consideration of the

allegations in the amended complaint, the defendants’ motion to dismiss and the plaintiff’s

opposition, the Court will grant the defendants’ motion to dismiss the claims against Lanier and

all of the aforementioned counts of the complaint, except Count 7, which survives the

defendants’ motion.

I. FACTUAL BACKGROUND

The events giving rise to this action are alleged by the plaintiff as follows. On November

15, 2006, “at approximately 8:50 p.m.,” the plaintiff tapped on the door of the McKinley Market

located at 321 T Street in the Northeast quadrant of the District of Columbia “to get the attention

of employees inside[,]” Am. Compl. ¶ 14, as he had done “[o]n previous occasions[] when the

store was closed,”

. The plaintiff and the employees of the neighborhood store “had a

friendly relationship” as a result of his near-daily trips to the store to purchase items for himself

and his family.

. On the particular day when the events that are the subject of this case

occurred, however, Officers Wytch, Freeman and Davis “pulled up in front of the store . . . in a

marked MPD vehicle[,] and [o]ne of the . . . [o]fficers flashed a light into [the plaintiff’s] eyes

from the marked . . . vehicle.”

. The plaintiff “asked that the light not [be] shined into

his eyes and asked the MPD Officers to stop harassing him for no reason.”

After telling the

officers that he was going to the store, one officer told him that the store was closed, but the

plaintiff responded that the store did not close until 9:00 p.m.

.

In response to the plaintiff’s stated “concerns of being harassed” and his accusations of

“continuous violations of his . . . constitutional” and statutory civil rights by “other MPD

2 Officers[],” one officer “responded, ‘Oh, you have an attitude.’ ”

. The officers then

“jumped out [of] their vehicles and rushed very fast towards [the plaintiff] with one of [the

officers] pointing a gun at [him] [] and one ask[ing] . . . [whether the plaintiff had] anything on

him they needed to know about,” to which the plaintiff “responded ‘No.’ ”

. When the

plaintiff became confused over the officers’ “inconsistent commands,” the officers “jumped on

[his] back . . . and attacked him.”

. While restraining the plaintiff, the officers threw him

to the ground, injured his shoulder, sat on his back,

, and apparently hit him in the

back of the head, “which forced his skull to hit the concrete alley pavement” twice, “knocking

him unconscious for a few seconds,”

. Eventually, the officers “arrested” the plaintiff at

the scene,

, but later released him from their custody,

, and the plaintiff went

home,

. The plaintiff “suffered injuries to his forehead, head, scalp, neck, face, shoulder,

one [knee], one [ankle], and . . . elbows . . . .”

. Prior to his release from police custody,

the plaintiff declined the officers’ offer to go to the hospital “because at that time he did not

know and was not aware of the damages done . . . .”

. The plaintiff later went to the Fifth

District Police Headquarters to file a complaint against the officers.

. While there, he

“felt so faint that he asked to be taken to a hospital” and was taken by ambulance to the

Emergency Department at Providence Hospital in the District of Columbia,

, where he

was later diagnosed “with having . . . contusion[s] of the head, scalp, face and neck,”

.

The plaintiff alleges that “[a]s a result of the injuries [he] suffered on November 15,

2006, by the use of force by the MPD Officers,” he has “reoccuring [sic] headaches, twitches

consisting of involuntarily [sic] head jerks, dizziness, [] frequent blurred vision” and “early signs

of depression.”

. The plaintiff also claims that “[a]s a result of several MPD Officers[’]

intentional, reckless, and malicious disregard for [his] rights from June of 2004 to March of

3 2007,” he has been deprived of his rights under the Constitution, District of Columbia law and

common law.

.

The challenged counts of the amended complaint are captioned as follows: Count 1

“Civil Rights Claims Under Act,

[,] Fifth Amendment Violations[,]

Discriminated [o]n [t]he Basis of His Sex and Race in Violation of the Equal Protection Clause”;

Count 2 “Civil Rights Claims Under

(3)”; Count 3 “Civil Rights Claims Under

[,] Violations of Right [t]o Liberty [U]nder Due Process [o]f Law in Violation

of the Fifth Amendment”; Count 4 “Civil Rights Claims Under

[,] Violations of

Right [t]o Property Under Due Process of Law in Violation of the Fifth Amendment”; Count 6

“Civil Rights Claims Under

[,] Violation of the Prohibition [A]gainst

Punishment [W]ithout Due Process of the Law in Violation of the Fifth Amendment”; Count 7

“Civil Rights Claims Under

[,] First Amendment Violations”; Count 9 “Civil

Rights Claims Under

[,] Retaliation [f]or Exerting Lawful [a]nd Constitutional

Rights in Violation of the Fifth Amendment”; and Count 15 “Defamation, Libel and Slander.”

Am. Compl. at 11, 24, 27-28, 29, 35, 37, 45, 63.

II. DISCUSSION

The defendants move for dismissal pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure. Mot. at 1. The analysis for a motion under Rule 12(c) for judgment on the pleadings

is essentially the same as that for a motion to dismiss under Rule 12(b)(6) for failure to state a

claim. Plain v. AT & T Corp.,

, 20 n.11 (D.D.C. 2006). 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 plaintiff’s favor, it appears

that the plaintiff can prove no facts “consistent with the allegations in the complaint” to support

4 the claim. Bell Atl. Corp. v. Twombly,

(2007). “Although detailed factual

allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the

grounds of entitlement to relief, a plaintiff must furnish more than labels and conclusions or a

formulaic recitation of the elements of a cause of action.” Hinson ex rel. N.H. v. Merritt Educ.

Ctr.,

(D.D.C. 2007) (internal quotation marks omitted) (quoting Bell Atl.

Corp.,

). Thus, “[t]he complaint's factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Hinson,

(alteration in

original) (internal quotation marks omitted) (quoting Bell Atl. Corp.,

).

1. The Claims Against Lanier

The plaintiff agrees that Chief Lanier should be dismissed from the case. Plaintiff’s

Response to Defendant’s [sic] Partial Motion to Dismiss the Amended Complaint (“Opp’n”)

[Dkt. No. 69] at 2 ¶ 5. As to this defendant, then, the Court will grant the motion to dismiss as

conceded.

2. The Equal Protection Claims (Counts 1, 2)

In Count 1 of the amended complaint, the plaintiff claims that he was discriminated

against on the basis of his sex and race in violation of the equal protection clause, Am. Compl. at

11, and in Count 2, he claims that Officers Wytch, Freeman and Davis “conspired to deny [him]

equal protection of the laws . . . ,” in violation of

(3),

. The defendants

challenge the conspiracy claim pled in Count 2, see Memorandum of Points and Authority in

Support of Defendants’ Motion to Partially Dismiss the Amended Complaint (“Mem.”) at 6-7,

but not the equal protection claim pled in Count 1, which the plaintiff has properly brought

against the District of Columbia defendants under the Fifth Amendment’s due process clause.

5 See Bolling v. Sharpe,

(1954) (“The Fifth Amendment, which is applicable in

the District of Columbia, does not contain an equal protection clause as does the Fourteenth

Amendment which applies only to the states. . . . But, as this Court has recognized,

discrimination may be so unjustifiable as to be violative of due process.”) (footnote omitted).

The Court, however, is required to dismiss a claim “at anytime [it] determines that . . . [the

complaint] fails to state a claim on which relief may be granted.”

(e)(2)(B)(ii)

(2006); see Simpkins v. District of Columbia,

(D.C. Cir. 1997)

(acknowledging “the duty of the lower federal courts to stop insubstantial Bivens actions in their

tracks and get rid of them.”) (citing cases).3

The plaintiff’s equal protection and conspiracy claims fail because he has not alleged any

facts establishing that the defendants were motivated by either his gender or his race. See

Ashcroft v. Iqbal, ___ U.S. ___, ___,

(2009) (“Where the claim is

invidious discrimination in contravention of the First and Fifth Amendments, our decisions make

clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose

. . . . Under extant precedent[,] purposeful discrimination requires more than “intent as volition

or intent as awareness of consequences.” . . . It instead involves a decisionmaker's undertaking a

course of action “ ‘because of,’ not merely ‘in spite of,’ [the action's] adverse effects upon an

identifiable group.”) (quotation marks in original) (citations omitted); United Bhd. of Carpenters

& Joiners of America v. Scott,

(1983) (finding Ҥ 1985(3)'s requirement that

there must be ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus

3 See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971) (creating private cause of action against federal officials for violations of constitutional rights); Ashcroft v. Iqbal, ___ U.S. ___, ___,

(2009) (recognizing Bivens action as “the federal analog to suits brought against state officials” under

) (citations and internal quotation marks omitted).

6 behind the conspirators' action’ [] not satisfied in this case.”) (quoting Griffin v. Breckenridge,

(1971)); accord Atherton v. District of Columbia Off. of the Mayor,

(D.C. Cir. 2009). Therefore, the Court, acting sua sponte, will dismiss the plaintiff’s

Fifth Amendment equal protection claim pursuant to

(e) and will grant the

defendants’ motion to dismiss the § 1985 conspiracy claim.

3. The Due Process Claims (Counts 3, 4, 6, 9)

The defendants argue correctly that the plaintiff’s claims of excessive force brought under

the Fifth Amendment’s due process clause “must be dismissed because such claims must be

brought under the Fourth Amendment’s ‘objective reasonableness’ standard.” Mem. at 3; see

Graham v. Connor,

(1989) (“[W]e . . . hold that all claims that law

enforcement officers have used excessive force – deadly or not – in the course of an arrest,

investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth

Amendment and its “reasonableness” standard, rather than under a “substantive due process”

approach.”) (emphasis and quotation marks in original) (footnote omitted); accord Johnson v.

Quander,

(D.D.C. 2005) (dismissing “substantive due process claim”

where “the plaintiff’s claim [was] covered by the Fourth Amendment.”) (citation omitted). The

Court therefore will grant the defendants’ motion to dismiss Counts 3, 4, 6 and 9 of the amended

complaint, all of which are subsumed within the remaining Fourth Amendment claim (Count 8).4

4 To the extent that Count 4, predicated on the plaintiff’s alleged deprivation of property during the course of the stop, is viewed as a claim separate from the excessive force claim, “the consensus of the circuits is that such procedural due process cases are governed by Parratt, and that no cognizable constitutional claim can be stated where adequate post-deprivation state remedies are available.” Rice v. District of Columbia,

(D.D.C. 2010) (quoting Crawford v. Parron,

(D.D.C. 1986) (citing Parratt v. Taylor,

(1981)).

7 4. The First Amendment Claim (Count 7)

In Graham, the Supreme Court reasoned that “[b]ecause the Fourth Amendment provides

an explicit textual source of constitutional protection against this sort of physically intrusive

governmental conduct, that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims.”

(footnote omitted). The

defendants suggest that this rationale is equally applicable to the plaintiff’s First Amendment

claim. See Mem. at 5 (“Just as plaintiff cannot claim a more generalized notion of substantive

due process in this matter, [he] also cannot claim a violation under a more generalized, and

possibly incorrect, notion of free speech.”). They assert sans authority or cogent argument that

the “First Amendment violation claim fails as a matter of law.” Id. at 5-6. But the First

Amendment’s free speech clause also “provides an explicit textual source of constitutional

protection,” Graham,

, namely, a proscription against the government’s

suppression of speech. See City of Houston v. Hill,

(1987) (“[T]he First

Amendment protects a significant amount of verbal criticism and challenge directed at police

officers.”). Therefore, the plaintiff is not foreclosed under Graham from bringing a separate First

Amendment claim.

The defendants argue erroneously that the First Amendment claim should be dismissed

because the plaintiff “fails to allege that he was prevented from speaking.” Mem. at 4. In the

amended complaint, the plaintiff alleges that “[o]n various dates from June of 2004 to March

2007, members of the MPD . . . violated [his] First Amendment Right to free speech when he

was told by several MPD Officers that if he did not refrain from talking he would be arrested for

no legal reason and when he was compelled to speak” by MPD officers. Am. Compl. ¶ 112; see

id. ¶¶ 113-124 (recounting alleged incidents where the plaintiff’s speech was either “chilled” or

8 “compelled”). These factual allegations are sufficient to state a claim under the First

Amendment. See City of Houston, 492 U.S. at 462-63 (“The freedom of individuals verbally to

oppose or challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.”) (footnote omitted);

Enlow v. Tishomingo County,

(5th Cir. 1992) (finding “allegations . . .

sufficient to state a cognizable First Amendment claim since [] speech [during] arrest fail[ed] to

rise above ‘inconvenience, annoyance, [] unrest’ . . . or constitute an incitement to immediate

lawless action.”) (quoting Terminiello v. City of Chicago,

(1949)). Because the

Court cannot conclude at the pleading stage that the plaintiff can prove no facts in support of his

First Amendment claim, it must deny the defendants’ motion to dismiss Count 7 of the amended

complaint.

5. The Defamation Claim (Count 15)

In Count 15 of the amended complaint, the plaintiff alleges that he was defamed on July

20, 2006, by an unknown MPD officer, and on November 15, 2006, by Officers Wytch, Freeman

and Davis. Am. Compl. ¶¶ 204-207. The defendants argue for dismissal of the claim on its

merits, see Mem. at 8-10, but the Court has in effect already disposed of this claim.

By Order of October 28, 2008, the Court granted partial summary judgment to the District

of Columbia on all of the plaintiff’s common law claims, except those based on the November 15

incident. See Order [Dkt. No. 36]; Memorandum Opinion [Dkt. No. 37] at 3 (“The defendant

rightly counters that not only are the alleged [common law] claims based on events from June

2004 to July 2006 barred by the six-month limitation period [of

], but those

claims that fall within the limitation period lack the requisite specificity of time and place to

provide the District with sufficient notice to investigate the claims.”). In addition, by Order of

9 April 22, 2010, the Court granted Davis’ motion for partial dismissal of the complaint. See

Order [Dkt. No. 63]. In the accompanying Memorandum Opinion (“Mem. Op.”) [Dkt. No. 64],

the Court found that most of the plaintiff’s common law claims against Davis, including this

defamation claim, were barred by the District of Columbia’s one-year statute of limitations.

Mem. Op. at 4-5. The Court therefore will dismiss Count 15 of the amended complaint for the

reasons stated in the previously issued memorandum opinions of October 28, 2008, and April 22,

2010.

III. CONCLUSION

For the foregoing reasons, the Court grants the defendants’ motion to dismiss all of the

claims of the amended complaint against Chief Lanier and Counts 1, 2, 3, 4, 6, 9 and 15 pled in

the amended complaint against the other defendants. The Court denies the defendants’ motion to

dismiss Count 7 of the amended complaint.5

________s/________________ Reggie B. Walton Date: February 23, 2011 United States District Judge

5 A separate Order accompanies this Memorandum Opinion.

10