UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIONTE COLEY, Plaintiff v. Civil Action No. 20-2182 (CKK) MURIEL BOWSER, et al., Defendants

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

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).

1 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.,

, 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 pop-

up 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.

2 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. A second clearing

3 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. 2 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.,

, 217–18 (D.D.C. 2012) (discussing incorporation by reference at the pleading stage). The protocol procedures may be

4 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.

5 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

6 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,

7 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

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

¶¶ 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,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(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,

. “A claim has facial plausibility when the plaintiff pleads factual content that

8 allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal,

. “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,

(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

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,

, 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

9 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

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,

(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,

(D.D.C. 2018) (quoting Payton v. New York,

, 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,

(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

10 theory of respondeat superior.” Ashcroft v. Iqbal,

(2009). Rather, a plaintiff

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

individual actions, has violated the Constitution.”

(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

11 Moving Defendants violated his Fourth or Fifth Amendment rights through their “own individual

actions.” Iqbal,

.

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,

(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,

(2009) (quoting Harlow v. Fitzgerald,

(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,

(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,

(2004)

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

question, Ashcroft v. al-Kidd,

, 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

12 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,

(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,

(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,

(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.”

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

¶¶

13 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,

(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,

(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,

(D.D.C.

2011) (quotation omitted); see also Greenpeace, Inc. v. Dow Chem. Co.,

(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,

. 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

14 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),

, at *7 (D.D.C. July 22, 2020) (quoting Exec.

Sandwich Shoppe, Inc. v. Carr Realty Corp.,

(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.,

(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,

, 481 (D.C. Cir.

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

15 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.,

(D.C. Cir. 2009); see also Inova Health,

, 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

¶¶ 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,

(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,

(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.”

16 Will v. Michigan Dep’t of State Police,

(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,

(D.C. Cir. 1996)

(citing Kentucky v. Graham,

, 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,

(D.D.C. 2005); see also Price v. District of

Columbia,

, 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,

(1989) (citing Monell v. New York City Dept.

of Social Services,

(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,

(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.”

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.

17 force [behind] the constitutional violation” alleged. Warren v. District of Columbia,

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

immunity from suit under § 1983.” Richardson v. District of Columbia,

(D.D.C. 2018) (citing Owen v. City of Independence,

(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,

. 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,

. The Court is also satisfied that

under local law, see Hamilton v. District of Columbia,

(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.,

(b); 24 DCMR

§ 121;

.

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

18 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,

(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,

(D.D.C. 2018) (citing Lavan

v. City of Los Angeles,

(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,

(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.,

(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.,

, 162–63 (D.D.C. 2013). As such, the

19 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,

(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,

(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),

, 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

20 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,

(D.D.C. 2017)

(quoting Parratt v. Taylor,

(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,

(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.

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 post-

deprivation tort remedy. See Zinermon,

(“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,

(D.D.C. 2005); see also Price v. District of Columbia,

(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

21 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

(c).

22