Epps v. Gray , 62 F. Supp. 3d 77 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
LARRY D. EPPS, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1126 (RC)
)
MAYOR VINCENT GRAY, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Defendant Michael Kelly’s Motion to Dismiss [ECF
No. 10] and Defendants District of Columbia Housing Authority, Officer Markwell, Sergeant
Street, Officer Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in the
Alternative Motion for Summary Judgment [ECF No. 12]. 1 For the reasons discussed below, the
former will be granted and the latter will be granted in part and denied in part without prejudice.
1
Plaintiff’s Motion to Amend and Dismiss the Complaint Against Two of the Defendants
Listed in Plaintiff’s 43 U.S.C. Section 1983 Mayor Vincent Gray and Attorney General Carnston
Mitchell for Failure to Properly State a Claim [ECF No. 16] and Mayor Vincent Gray and the
District of Columbia’s Motion to Dismiss [ECF No. 5] will be granted. As plaintiff has
recognized, see generally Pl.’s Mot., the District of Columbia Housing Authority is a legal entity
distinct from the District government, see D.C. Code § 6-202. Therefore, the District of
Columbia is not liable for any damages caused by the District of Columbia Housing Authority or
the District of Columbia Housing Authority Police Department. See Hoffman v. District of
Columbia, 730 F. Supp. 2d 109, 116 (D.D.C. 2010) (concluding that, because “DCHA is an
independent agency legally distinct from the District government,” a DCHA hearing officer’s
“determinations do not have claim or issue preclusive effect against the District”). For ease of
case administration, the case caption remains unchanged.
1
I. BACKGROUND
The events giving rise to plaintiff’s claims began on August 12, 2011, when Sgt. Willie
Street of the District of Columbia Housing Authority Police Department (“DCHAPD”)
“intercepted” plaintiff near the intersection of Division Avenue and Blaine Street in Northeast
Washington. Complaint (“Compl.”) [ECF No. 1] ¶ 13; see Plaintiff’s Affidavit (“Pl.’s Aff.”) at 1
[ECF No. 1 at 18].
A. Plaintiff’s Allegations
According to plaintiff, he “was minding his business and [walking] in the neighborhood
where he is a life-long resident,” Compl. ¶ 6, when Sgt. Street “ventured into the surrounding
residential neighborhood of a Housing project,” id. ¶ 17, that is, “outside of [the DCHAPD’s]
primary assigned area of duty,” id. ¶ 6.
Sgt. Street, plaintiff alleged, “was driving a [DCHA] Police car[,] made a U turn on
[D]ivision Ave[nue], and exited his police car and then demanded that Plaintiff product [sic]
some identification.” Id. ¶ 13. “Plaintiff’s immediate response to this command was” to ask
why Sgt. Street had stopped him. Id. Sgt. Street “responded by saying that he was asking the
questions.” Id. Plaintiff “then proceeded to produce [his] identification,” which Sgt. Street used
“to run the plaintiff’s name for intelligence related to any warrants.” Id. “Sgt[.] Street requested
back up assistance from fellow officers.” Id. “While awaiting the return of [his] identification,”
plaintiff allegedly “reach[ed] into [his] top left shirt pocket to retrieve a cigarette.” Compl. ¶ 13.
The other DCHAPD officers were identified as Benjamin Markwell, Michael Brown, and
Reginal Strother. See Defendants District of Columbia Housing Authority, Officer Markwell,
Sergeant Street, Officer Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in
the Alternative Motion for Summary Judgment (“Defs.’ Mot.”) [ECF No. 12], Exs. B (Markwell
2
Decl.) ¶¶ 7-8, C (Brown Decl.) ¶¶ 7-8 & D (Strother Decl.) ¶ 8. According to plaintiff, upon
arrival they “circled . . . and attacked” him, “put [him] into a full nelson chock [sic] hold and
lift[ed him] up off the ground.” Id. During this encounter, plaintiff’s “knee was skinned against
. . . a brick wall.” Id. Further, he alleged, “[t]he contents of [his] left shirt-pocket were shook
out of the pocket with . . . repeated hitting against [his] upper chest.” Id. Among those contents
were “two plastic bags.” Id. Plaintiff was then arrested and charged with possession of heroin.
Id.; see id., Ex. (Information dated August 13, 2011) [ECF No. 1 at 48]. The criminal charge
was dismissed for want of prosecution on December 8, 2011. Id. ¶ 13.
Plaintiff was on parole at the time of his arrest on August 12, 2011. Id. Apparently
based on this arrest, the United States Parole Commission issued a parole violator warrant on
September 9, 2011, causing plaintiff’s return to custody on September 20, 2011 upon execution
of the warrant. Id.; see id. ¶¶ 8-9. Notwithstanding dismissal of the criminal charge, the Parole
Commission conducted a revocation hearing on January 18, 2012 and revoked plaintiff’s parole.
Id. ¶ 9. Thereafter, plaintiff “was made to endure 18 months of incarceration for noncriminal
administrative infractions” of the conditions of his parole. Id. ¶ 13. Further, plaintiff alleged, he
lost Social Security benefits as a result of the Parole Commission’s actions, id. ¶ 10, and he
sustained “physical abuse and mental anguish,” for which he demands compensatory and
punitive damages, see id. at 12-13.
B. Defendants’ Representations
According to defendants, on August 12, 2011, “all DCHA police officers were on patrol
as part of the Metropolitan Police Department and its . . . All Hands On Deck (‘AHOD’)
initiative,” Defs.’ Mot., Ex. E (Street Decl.) ¶ 4, which meant that “all available police officers
and recruits with the Metropolitan Police Department and DCHAPD [were] called to duty and
3
assigned to street patrol citywide for 48 hours,” id., Ex. E ¶ 5; see id., Exs. B ¶¶ 3-5, C ¶¶ 3-5 &
D ¶¶ 4-6.
Sgt. Street stated that he observed plaintiff “emerge from an alley at Division Avenue and
Blaine Street NE” walking towards his vehicle, id., Ex. E ¶ 8, and he “made a contact with
[plaintiff] shortly thereafter,” id., Ex. E ¶ 9. According to Sgt. Street, he asked plaintiff whether
he would consent to a pat down for weapons; plaintiff complied. Id., Ex. E ¶¶ 10-11. While Sgt.
Street was “patting down [plaintiff’s] upper body, [plaintiff] jumped as if he [were] startled,” id.,
Ex. E ¶ 12, at which time Sgt. Street asked plaintiff “to place his hands on a wall,” in a position
where his “upper body was slightly bent over,” id., Ex. E ¶ 13. “As the pat down continued, two
plastic baggies containing a substance fell from [plaintiff’s] shirt pocket.” Id., Ex. E ¶ 14. Sgt.
Street then “called for backup to have the substance field tested.” Id., Ex. E ¶ 15. “Officers
Brown and Markwell arrived on the scene[,] and field tested the substance [which] tested
positive for heroin.” Id., Ex. E ¶ 16. Plaintiff was arrested for possession of heroin. Id., Ex. E ¶
17.
Sgt. Street averred that none of the officers “use[d] physical force with [plaintiff].” Id.,
Ex. E ¶ 18. “There was no need to get physical because [plaintiff] complied with all orders given
to him.” Id., Ex. E ¶ 19. At no time, declared Sgt. Street, did plaintiff “complain that he was
injured or ask for medical treatment.” Id., Ex. E ¶ 20. Officer Strother’s account of the events
was consistent with Sgt. Street’s representations. See generally id., Ex. D ¶¶ 8-20. He declared
that “[n]o DCHA police officer used physical force” with plaintiff, id., Ex. D ¶ 19, because
plaintiff “remained cooperative throughout” their encounter, id., Ex. D ¶ 20.
According to Officers Markwell and Brown, they were called to the scene in order to
conduct a field test of the substance found in the baggies that fell from plaintiff’s pocket. See id.,
4
Exs. B ¶¶ 8-9 & C ¶¶ 8-9. The substance tested positive for heroin. Id., Exs. B ¶ 9 & C ¶ 9.
Neither officer spoke to, had physical contact with, or effected the arrest of plaintiff. Id., Exs. B
¶¶ 11-13 & C ¶¶ 11-13.
II. DISCUSSION
A. Defendant DCHA’s Motion to Dismiss
The DCHA defendants treat the complaint as “nothing more than an amalgam of
grievances in search of a theory of liability.” Defs.’ Mem. at 1. They move to dismiss on the
ground that it fails to comply with Rule 8(a) of the Federal Rules of Civil Procedure. See id. at
4-5. According to defendants, “it is difficult to determine the cause of action alleged by
[plaintiff] and to which [d]efendants he attributes his various allegations.” Id. at 4. Rather, they
contend, plaintiff “baldly states that certain actions, although it is impossible to determine which
actions and by which actor, violated certain protections afforded to him” under the Fourth,
Eighth, Thirteenth and Fourteenth Amendments to the United States Constitution. Id. at 5.
Defendants expect far more of a pro se litigant than is reasonable. See, e.g., Richardson
v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519,
520–21 (1972) (per curiam)). Admittedly, based on the facts alleged, neither the Eighth, the
Thirteenth nor the Fourteenth Amendment applies in this case. However, in light of plaintiff’s
allegations of an “illegal search and seizure/stop and frisk by police,” see Compl. ¶ 8, an
unlawful arrest by DCHAPD officers without probable cause, see id. ¶¶ 6, 8, 13, the DCHA’s
failure to train and supervise its officers, see id. ¶¶ 6-8, 15, 17, and the officers’ use of excessive
force, see id. ¶ 13, the complaint is reasonably construed as one brought under 42 U.S.C. § 1983alleging violations of plaintiff’s Fourth Amendment rights. See, e.g., Steele v. District of
Columbia Housing Auth., No. 02-1420, 2006 WL 335770, at *5 (D.D.C. Feb. 14, 2006) (“A
5
citizen who alleges that he . . . has been subjected to an unreasonable search or seizure, or
excessive force in the course of an arrest or seizure in violation of the Fourth Amendment, may
seek redress under Section 1983.”); Reed v. District of Columbia, 474 F. Supp. 2d 163, 170
(D.D.C. 2007) (noting that “[t]he failure to train or supervise a city employee can amount to an
unconstitutional policy when it can be said that the failure amounts to deliberate indifference
towards the constitutional rights of persons with whom the officials come in contact”). A critical
shortcoming of the complaint is its failure to allege adequately a Fourth Amendment claim
against the DCHA.
In order to hold the DCHA liable for a constitutional violation, plaintiff “must show ‘not
only a violation of his rights under the Constitution or federal law, but also that the [DCRA’s]
custom or policy caused the violation.’” Feirson v. District of Columbia, 506 F.3d 1063, 1066
(D.C. Cir. 2007) (citing Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004)).
“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the force
of law.” Connick v. Thompson, __ U.S. __, __, 131 S. Ct. 1350, 1359 (2011).
With respect to the first prong of this analysis, it is presumed that plaintiff has a right to
be free from unlawful searches and seizures and from police officers’ use of excessive force.
See, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989) (treating an “excessive force claim
aris[ing] in the context of an arrest or investigatory stop of a free citizen . . . as one invoking the
protections of the Fourth Amendment”); Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987)
(“It is well settled that an arrest without probable cause violates the fourth amendment.”).
With respect to the second prong, plaintiff must allege “that a policy or custom of the
[DCRA] caused the constitutional violation alleged under the first prong.” Baker v. District of
6
Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 694 (1978)); see Elkins v. District of Columbia, 690 F.3d 554,
564 (D.C. Cir. 2012) (“Case law has established that a municipality can be held liable only for
constitutional violations committed by an employee who acted according to a city ‘policy or
custom’ that was ‘the moving force’ behind the violation.” (citing Monell, 436 U.S. at 694)). In
other words, there must be an affirmative link between the municipal policy, custom or practice
and the alleged constitutional violation. Connick, __ U.S. at __, 131 S. Ct. at 1359; see Warren,
353 F.3d at 39 (noting ways to demonstrate that custom or policy caused claimed violation of
constitutional rights). “Respondeat superior or vicarious liability will not attach under § 1983,”
City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95), and,
therefore, the DCHA cannot be held liable solely on account of the actions of its employees, see
Harris, 489 U.S. at 385.
Wholly absent from plaintiff’s complaint are factual allegations regarding the existence
or implementation of a DCHA policy, custom or practice resulting in a constitutional violation.
This pleading defect is fatal, and plaintiff’s constitutional claims against the DCHA fail. See,
e.g., Jackson v. District of Columbia, 949 F. Supp. 2d 257, 262 (D.D.C. 2013) (dismissing
complaint which “offers no factual allegations as to what policy, rule, practice or custom cause
the violation of his constitutional rights”); Faison v. District of Columbia, 907 F. Supp. 2d 82, 85
(D.D.C. 2012) (dismissing § 1983 claim where “complaint sets forth no factual allegations
regarding the existence and enforcement of a municipal policy, custom or practice that directly
caused a violation of his Fifth Amendment right to due process”), aff’d per curiam, No. 13-7021,
2013 WL 5975981 (D.C. Cir. Oct. 23, 2013).
7
B. Defendant Michael Kelly’s Motion to Dismiss
Plaintiff identifies Michael Kelly as the Executive Director of the DCHA. Compl. ¶ 6. It
does not appear, however, that defendant Kelly held this position at the time of plaintiff’s arrest:
6. Michael Kelly was the Executive Director of DCHA from 2000
to 2009.
7. Michael Kelly is no longer an employee of DCHA.
8. Michael Kelly was not an employee of the DCHA on August
12, 2011 at the time of the incident either.
Defendant Michael Kelly’s Motion to Dismiss (“Kelly Mot.”) [ECF No. 10], Ex. A (Mosley
Decl.) ¶¶ 6-8. 2 Service of process on Kelly was not effected properly, as no DCHA employee
would accept service on his behalf. Id., Ex. A ¶¶ 5, 9. Accordingly, Kelly moves to dismiss
under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process.
Id. at 3-4 (page numbers designated by the Court).
Ordinarily, a plaintiff who is proceeding pro se and in forma pauperis relies on the Clerk
of Court and the United States Marshals Service to issue summonses and to serve the defendants.
See 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3). In such circumstances, a plaintiff
generally is not penalized for a failure to effect proper service. See, e.g., Harrod v. U.S. Parole
Comm’n, No. 13-0774, 2014 WL 606196, at *2 n.1 (D.D.C. Feb. 18, 2014) (denying motion to
dismiss under Rule 12(b)(5)); Harris v. Fulwood, __ F. Supp. 2d __, __, 2013 WL 5824422, at
*4 (D.D.C. Oct. 30, 2013) (“Since plaintiff is proceeding in forma pauperis and, thus, relying on
the court officers to effect proper service, see 28 U.S.C. § 1915(d), the court will not penalize
plaintiff by dismissing the complaint [under Rules 12(b)(2) and 12(b)(5)] without first allowing
him to provide additional service information that might cure this defect.”). Even if plaintiff had
2
Defendant’s counsel represents that, “[o]n August 12, 2011, Adrianne Todman was serving as
the Executive Director of DCHA.” Kelly Mot. at 4.
8
named the proper Executive Director of the DCHA and if service of process had been sufficient,
dismissal as to Kelly still would be warranted.
Plaintiff sues Kelly “in his professional official capacity.” Compl. ¶ 6. A suit under §
1983 against a municipal official in his official capacity is “equivalent to a suit against the
municipality itself.” Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (citing
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). In other words, the suit “generally
represent[s] only another way of pleading an action against an entity of which an officer is an
agent.” Monell, 436 U.S. at 690 n.55. “Based upon the understanding that it is duplicative to
name both a government entity and the entity’s employees in their official capacity, courts have
routinely dismissed corresponding claims against individuals named in their official capacity as
redundant and an inefficient use of judicial resources.” Robinson v. District of Columbia, 403 F.
Supp. 2d 39, 49 (D.D.C. 2005) (internal quotation marks and citations omitted).
Here, plaintiff names the DCHA as a defendant to this action, and the DCHA is “an
independent authority of the District Government,” D.C. Code § 6-202(a), which can “[s]ue and
be sued in its own name,” id. § 6-203(11). Plaintiff’s claims against DCHA’s Executive Director
in his official capacity are redundant, and defendant Kelly’s motion to dismiss will be granted. 3
See Jeffries v. District of Columbia, 917 F. Supp. 2d 10, 29 (D.D.C. 2013) (dismissing
“redundant [and] inefficient” claims against Chief of the Metropolitan Police Department in her
official capacity); Robinson, 403 F. Supp. 2d at 49-50 (granting defendant’s motion for summary
judgment “to the extent that it seeks to have Plaintiff’s claims against [former Executive Deputy
Chief of the Metropolitan Police Department] in his official capacity dismissed from this suit”).
3
Likewise, plaintiff’s claims against Joel Maupin, Chief of the DCHAPD, in his official
capacity, see Compl. ¶ 7, will be dismissed.
9
C. The DCHAPD Officers’ Motion for Summary Judgment
1. Summary Judgment Standard
The court grants summary judgment if defendants “show[] that there is no genuine
dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). To this end, defendants are expected to inform the district court of the basis of
their motion and to identify the portions of the record on which they rely. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Plaintiff as the opposing party cannot rely on “mere
allegations or denials” in response to defendants’ showing. Burke v. Gould, 286 F.3d 513, 517
(D.C. Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal
quotation marks omitted). He, too, must refer to particular materials in the record either to
support his own assertions of fact or to oppose defendants’ assertions. See Fed. R. Civ. P.
56(c)(1). “[C]onclusory allegations unsupported by factual data will not create a triable issue of
fact.” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal
quotation marks and citations omitted). “At the summary judgment stage, facts must be viewed
in the light most favorable to [plaintiff] only if there is a genuine dispute as to those facts,” and
where “the record taken as a whole could not lead a rational trier of fact to find for [plaintiff],
there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citations and
internal quotation marks omitted).
2. Qualified Immunity
“To the extent that [p]laintiff has successfully alleged any constitutional violations
against any of the individual officers,” Defs.’ Mem. at 8-9, they assert qualified immunity as a
defense, id. at 9. For purposes of this discussion, because plaintiff has sworn “under penalty of
perjury, that the . . . statements of facts alleged in [his] 42 U.S.C.A. 1983 civil rights action
10
complaint [are] true and correct to the best of [his] knowledge,” Pl.’s Aff. at 1, the Court treats
the verified pleading as an affidavit in opposition to defendants’ motion for summary judgment,
see Neal v. Kelly, 963 F.2d 453, 457-58 (D.C. Cir. 1992), insofar as its assertions are based on
plaintiff’s personal knowledge, set forth facts that would be admissible in evidence, or are
matters about which plaintiff is competent to testify, see Fed. R. Civ. P. 56(c)(4).
“[G]overnment officials performing discretionary functions generally are shielded 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.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). This protection is afforded to police officers
whether their “error is a mistake of law, a mistake of fact, or a mistake based on mixed questions
of law and fact.” Id. (citations and internal quotation marks omitted). Thus, “all but the plainly
incompetent or those who knowingly violate the law” may enjoy the protection of qualified
immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-step analysis
for resolving government officials’ qualified immunity claims. First, the court decides “whether
the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” Id.
at 201. If the plaintiff satisfies this first step, the court then decides whether the right at issue
was clearly established at the time of the defendant’s alleged misconduct. Id. The sequence of
this analysis is not mandatory, however, and courts may “exercise their sound discretion in
11
deciding which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
For purposes of this discussion, it is presumed that the Fourth Amendment protects
plaintiff from unlawful searches and seizures and from excessive force in effecting an arrest.
And it is presumed that these rights were clearly established on August 12, 2011. The central
question, then, is whether the undisputed material facts presented, taken in the light most
favorable to plaintiff, show that the conduct of defendants Street, Strother, Markwell and Brown
violated plaintiff’s Fourth Amendment rights.
“[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of
persons.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Rather, a person is ‘“seized’ within the
meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.” United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (footnote omitted); see Gomez v. Turner, 672 F.2d 134,
141 (D.C. Cir. 1982) (“[I]n this circuit the test of whether a seizure has occurred is whether a
reasonable person, innocent of any crime, would have felt free to walk away under the
circumstances.”). If, for example, an officer “merely engage[s] in conversation with a citizen,”
he “does not thereby create the requisite restraint on liberty which would constitute an arrest.”
Coates v. United States, 413 F.2d 371, 374 (D.C. Cir. 1969) (footnote omitted). But a person can
be “seized” by physical force, or if no physical force is employed, “by a show of authority to
which the person submits.” Flythe v. District of Columbia, __ F. Supp. 2d __, __, 2013 WL
5964008, at *6 (D.D.C. Nov. 8. 2013) (citation omitted).
The standard for arrest is probable cause, see Gerstein v. Pugh, 420 U.S. 103, 112
(1975)), which denotes “facts and circumstances within the officer’s knowledge that are
12
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense,” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted). It is a “practical,
nontechnical conception,” Brinegar v. United States, 338 U.S. 160, 176 (1949), factoring in “the
factual and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act,” id. at 175. “Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing Maryland v. Pringle, 540 U.S. 366, 371
(2003)). The arresting officer’s state of mind is not relevant in determining whether probable
cause exists, Devenpeck, 543 U.S. at 152, and his “subjective motive does not invalidate
objectively reasonable behavior under the Fourth Amendment,” Oberwetter v. Hilliard, 680 F.
Supp. 2d 152, 167 (D.D.C. 2010).
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where
there is probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck, 543 U.S. at 152 (citations omitted). If an arrest is justified, then the arresting officer
is protected by qualified immunity and the damages action against him fails. See Saucier, 533
U.S. at 207; see also Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that “the defense of good
faith and probable cause . . . is . . . available to the officers in the action under § 1983”).
There remain genuine issues of material fact in dispute as to seizure, search, arrest and
use of force. Defendants’ declarations shed no light on the reasons for approaching plaintiff or
the circumstances surrounding their encounter with plaintiff. Plaintiff alleges that Sgt. Street,
while in uniform and driving a police vehicle, initiated contact with him, declined to entertain his
questions, and promptly summoned to the scene additional officers who allegedly surrounded
13
him. A reasonable person in plaintiff’s position could have concluded that he was not free to
leave, even without the officers’ use of physical force at the outset. The officers’ assertions that
plaintiff consented to and complied with the pat down are inconsistent with plaintiff’s repeated
assertions of an unlawful search. It is not clear which officer(s) had actual physical contact with
plaintiff or which officer(s) effected plaintiff’s arrest for possession of heroin. Plaintiff’s version
of events implicates all of the officers, while defendants maintain that Officers Brown and
Markwell neither touched nor arrested plaintiff. Strother’s level of involvement is unclear.
Lastly, the two sides present vastly different descriptions of the force exerted: either no physical
force was used at all, or the officers used sufficient force to cause injury to plaintiff’s knee and to
shake loose the contents of plaintiff’s shirt pocket. Without further factual development by the
parties, the Court cannot determine whether these defendants are entitled to qualified immunity.
III. CONCLUSION
For the reasons discussed above, the Court will grant Mayor Vincent Gray and the
District of Columbia’s Motion to Dismiss [ECF No. 5], Defendant Michael Kelly’s Motion to
Dismiss [ECF No. 10], and Plaintiff’s Motion to Amend and Dismiss the Complaint Against
Two of the Defendants Listed in Plaintiff’s 43 U.S.C. Section 1983 Mayor Vincent Gray and
Attorney General Carnston Mitchell for Failure to Properly State a Claim [ECF No. 16].
Defendants District of Columbia Housing Authority, Officer Markwell, Sergeant Street, Officer
Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in the Alternative Motion for
Summary Judgment [ECF No. 12], will be granted in part and denied in part. An Order
accompanies this Memorandum Opinion.
/s/
RUDOLPH CONTRERAS
United States District Judge
DATE: July 31, 2014
14