Thorp v. District of Columbia , 142 F. Supp. 3d 132 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK THORP,
Plaintiff,
v. Civil Action No. 15-195 (JEB)
THE DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Mark Twain once observed, “[T]he dog is a gentleman; I hope to go to his heaven, not
man’s.” Letter to William D. Howells, April 2, 1899, in Selected Mark Twain-Howells Letters
1872-1910 at 331 (Anderson et al. eds., 1967). Plaintiff Mark Thorp, a dog owner who alleges
that members of the Metropolitan Police Department treated him and his canine companion in an
ungentlemanly and unconstitutional manner, would doubtless agree. In the current suit, he
complains that MPD officers, inter alia, unlawfully searched his house, improperly seized and
damaged his property, abused their law-enforcement authority to intimidate him, maliciously
initiated unfounded criminal proceedings against him, and injured his dog. Defendants – the
District of Columbia and a single named police officer – now move to dismiss the Complaint,
and Thorp cross-moves for partial summary judgment. After addressing all ten counts of the
Complaint, the Court will grant in part and deny in part Defendants’ Motion and deny Thorp’s
altogether.
I. Background
Thorp, a resident of the District of Columbia, brings this suit against the District and
Lieutenant Ramey Joseph Kyle, an MPD officer, in his individual capacity. See Second
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Amended Complaint (SAC), ¶¶ 11-13. For purposes of Defendants’ Motion to Dismiss, the
Court views the facts as pled in the Second Amended Complaint as true. See ECF No. 22. (It
will address the facts in Thorp’s Motion in Section III.K, infra.)
Thorp alleges that the catalyst for the events detailed in his latest Complaint was a
defamation suit he brought – and ultimately won – in D.C. Superior Court against non-party
Kathy Henderson. Id., ¶¶ 16-17. In that action, Thorp claimed that Henderson, an Advisory
Neighborhood Commissioner, had published false statements suggesting that Plaintiff’s
company, JVLHC, LLC – operator of the local bar Jimmy Valentine’s Lonely Hearts Club – had
violated the law and threatened public safety by selling illegal drugs. Id., ¶ 16. The Superior
Court found in his favor and awarded his company more than $150,000 in damages and attorney
fees, but, Plaintiff alleges, members of MPD “attempted to interfere and delay the execution of
[that] judgment.” Id., ¶¶ 16-22. Such interference was the subject of another lawsuit in this
Court, JVLHC, LLC v. Hughes, No. 14-1747, id. ¶ 23, which was voluntarily dismissed by
JVHLC. See No. 14-1747, ECF No. 7.
With that prior dispute as a backdrop, Plaintiff’s allegations here center on Defendant
Kyle, the MPD officer whose unit is responsible for enforcing narcotics violations in Plaintiff’s
neighborhood but allegedly has no mandate to enforce “animal violations.” See SAC, ¶¶ 30-31.
According to Thorp, Kyle “is, or has previously been, in a romantic relationship with a woman
who previously had a romantic relationship with the Plaintiff,” and this shared personal history is
the source of Kyle’s animus toward Thorp. Id., ¶¶ 29, 46. That animus, Thorp believes, led
Kyle to conspire “with Henderson and unknown members of the Metropolitan Police Department
Command staff . . . to use assets and personnel of the [MPD] to intimidate and retaliate against”
Thorp for filing his lawsuit against Henderson. Id., ¶ 34. He alleges that MPD officers have
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posted themselves outside his house, stopped him and searched his vehicle without probable
cause, issued parking tickets on his legally parked vehicles, and “taunt[ed] the Plaintiff by
yelling into the windows of his residence.” Id., ¶¶ 38-41.
Plaintiff alleges that on the day that a local newspaper announced the sale of Henderson’s
property at auction to help satisfy the Superior Court judgment, Kyle, accompanied by other
members of his MPD unit, executed a “no knock” search warrant “purportedly and solely for an
allegation of animal cruelty regarding the Plaintiff’s dog.” Id., ¶ 42. Thorp states that the
warrant was based on false statements, was intended to intimidate him, and did not yield any
evidence of animal cruelty. Id., ¶¶ 43-50. Plaintiff alleges that Kyle’s true motive was to search
for illegal drugs in Thorp’s home and that after Thorp’s dog was found unharmed, Kyle
exceeded the scope of the original warrant by searching through “closed containers.” Id., ¶¶ 50-
54. Inside, he found substances that tested positive for amphetamines. Id., ¶ 54; see also MTD
at 8 (indicating that the amphetamines were found in Plaintiff’s freezer).
Following that discovery, “Kyle sought an additional search warrant.” Id., ¶ 54. Yet
Thorp insists that he had a “current and legal prescription for at least one amphetamine based
pharmaceutical”; that Kyle knew of that prescription; and that Kyle “knowingly withheld his
knowledge” of the prescription when MPD applied for an additional search warrant on the basis
of the discovered amphetamines. Id., ¶¶ 55-58. After this second search – which Thorp deems a
“raid” – Kyle arrested and charged him with animal cruelty and possession of illegal drugs. Id.,
¶¶ 59, 64. Plaintiff further alleges that during the two searches, Kyle or his MPD team seized
Thorp’s dog, cash receipts from his nightclub businesses, and “[o]ther valuable property . . .
including jewelry,” and that they destroyed “[n]umerous items” of his property, including much
of his furniture, in the process. Id., ¶¶ 62-66. Plaintiff alleges that both he and his dog suffered
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various injuries during and after the raid, and that he was “subjected to burdensome and
humiliating conditions of pre-trial release” before the criminal charges against him were
dropped. Id., ¶¶ 69-80.
Seeking redress for these injuries and the purportedly unlawful events that produced
them, Plaintiff brought the instant lawsuit, requesting compensatory and punitive damages and
attorney fees. His original Complaint advanced eight counts and was accompanied by a Motion
for a Temporary Restraining Order and a Motion for a Preliminary Injunction. The Court denied
the former, and Thorp subsequently withdrew the latter and filed an Amended Complaint. See
ECF Nos. 1, 3, 4, 12, 13, and Minute Order of Feb. 13, 2015. Defendants then filed a Motion for
More Definite Statement, arguing that the changed circumstances of the dispute between Thorp
and Kyle – e.g., the return of the dog – as well as Thorp’s voluntary dismissal of one of the
original Defendants, merited a restatement of Plaintiff’s substantive claims. See ECF No. 17 at
1. The Court agreed and ordered Thorp to file a Second Amended Complaint; he complied, and
that pleading is the one at issue here. See ECF Nos. 20, 22. Plaintiff now advances ten separate
counts – “deprivation of property,” “deprivation of a liberty interest,” Fourth Amendment
“deprivation,” negligent supervision and retention, conspiracy, common-law malicious
prosecution, § 1983 malicious prosecution, two counts of abuse of process, and “injunctive
relief” – under 42 U.S.C. §§ 1983, 1985, and the common law of the District of Columbia. See
SAC, ¶¶ 81-133.
Defendants now move to dismiss the Second Amended Complaint, and Thorp both
opposes that Motion and also moves for Partial Summary Judgment.
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II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss under Rule 12(b)(6), the Court must “treat the complaint’s factual allegations
as true and must grant plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal
quotation marks and citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor
an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed
factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if]
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(internal quotation marks omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even
if “recovery is very remote and unlikely,” the facts alleged in the complaint “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A motion to dismiss under Rule 12(b)(6) must
rely solely on matters within the complaint, see Fed. R. Civ. P. 12(d), which includes statements
adopted by reference as well as copies of written instruments joined as exhibits. See Fed. R. Civ.
P. 10(c). Where the Court must consider “matters outside the pleadings” to reach its conclusion,
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a motion to dismiss “must be treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).
Summary judgment, conversely, is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “A fact is material if it ‘might affect the outcome of the suit under the governing law,’
and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir.
2008) (quoting Anderson, 477 U.S. at 248).
Although the Court must view all of the facts in the light most favorable to the non-
moving party, the non-moving party’s opposition must consist of more than mere unsupported
allegations or denials, and it must be supported by affidavits, declarations, or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(e); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“[W]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine
issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
III. Analysis
In considering the two competing Motions, the Court will devote the lion’s share of its
discussion to separate analyses of each of Plaintiff’s counts. It will then conclude with a brief
examination of his Motion for Partial Summary Judgment.
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A. Monell Liability
Before proceeding to its count-by-count analysis, the Court must first address the
threshold issue of the District’s liability here for constitutional violations. Plaintiff unhelpfully
never specifies which of his ten counts is asserted against which Defendant, forcing the Court to
assume that all are alleged against both the District and Kyle. While some of the common-law
counts rely on a theory of vicarious liability (e.g., Counts VII-IX), the constitutional ones
(Counts I-III, purportedly IV, and VI), which are brought under 42 U.S.C. § 1983, cannot do so.
Instead, “[t]o state a Section 1983 claim against a municipality, a plaintiff must . . . allege
that it maintained a policy or custom that caused the violation of his or her constitutional rights.”
Kenley v. District of Columbia, 83 F. Supp. 3d 20, 34 (D.D.C. 2015) (emphasis added) (citing
Connick v. Thompson, 131 S. Ct. 1350 (2011), and Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658 (1978)). “The mere assertion that the police officer was acting . . .
pursuant to the policies of [the municipality] is not specific enough to withstand dismissal”
where the Plaintiff “fail[s] to allege that his claimed constitutional harm was caused by a policy
statement, ordinance, regulation, or decision promulgated or adopted by” the municipality.
Miller v. Barry, 698 F.2d 1259, 1260 (D.C. Cir. 1983) (per curiam) (affirming motion to
dismiss) (internal quotation marks and citation omitted). Put another way, the “official policy
must be the moving force of the constitutional violation in order to establish liability of a
government body under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326 (1981) (internal
quotation marks and citation omitted).
As the Supreme Court has explained, a pattern or 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, 131 S. Ct. at 1359. A plaintiff
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may also allege that the municipality demonstrated deliberate indifference to a risk of
constitutional violations, resulting in those transgressions. See Baker v. District of Columbia,
326 F.3d 1302, 1306 (D.C. Cir. 2003); see also Costello v. District of Columbia, 826 F. Supp. 2d
221, 224 (D.D.C. 2011) (explaining that in order to state claim for Monell liability against the
District, a plaintiff must allege that municipality (1) explicitly adopted policy that caused
constitutional violation, (2) knowingly ignored practice that was consistent enough to constitute
custom, or (3) failed to respond to a need in such a manner as to show deliberate indifference to
risk of constitutional violations).
In this case, Plaintiff only alleges an injury caused by a “policy or custom” of the District
in Count II and “a deliberate indifference to [Thorp]’s constitutional rights” in Count IV. See
SAC, ¶¶ 93, 105. Because no other cause of action includes allegations of any official municipal
policy, the District cannot be liable under § 1983 for Counts I, III, and VI.
In Count II, Thorp does allege that a deprivation of his liberty in connection with his
seizure “was condoned or directed by policymakers of the Metropolitan Police Department and
amounts to an official policy or custom of the District of Columbia Government.” Id., ¶ 93. But
he identifies no explicit or implicit policy related to any of the litany of injuries asserted in the
count, does not explain how Kyle was directed by policymakers, and does not connect any such
directions to specific constitutional injuries he suffered. The stand-alone allegation of a policy or
custom, therefore, is a “statement [that] is nothing more than ‘a legal conclusion couched as a
factual allegation,’ which the Court is not obligated to accept.’” Kenley, 83 F. Supp. 3d at 35
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This count, too, cannot proceed against the
city.
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As for Count IV, which asserts a negligent-supervision claim, Thorp alleges that Kyle
was “known by the Metropolitan Police Department to conduct unlawful searches of private
property”; that “[r]ather than discipline Defendant Kyle or remove him from service as a police
officer, the District of Columbia has rewarded and encouraged such misconduct by . . . a series
of promotions and transfers”; and that “[s]uch conduct by the District of Columbia demonstrates
a deliberate indifference to the Plaintiff’s constitutional rights.” SAC, ¶¶ 103-105. It is unclear
whether Thorp intends to plead a common-law or constitutional claim in this count, but the Court
will give him the benefit of the doubt by considering both.
If it were the latter, the count would fail, for while it recites some of the elements of
Monell liability premised on “deliberate indifference,” it is unaccompanied by any specific
factual allegations about Kyle’s prior “unlawful searches of private property” or about how MPD
came to know or should have known about those searches. The facts alleged in the Complaint
must establish “the failure of the government to respond to a need (for example, training of
employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing
the need will result in constitutional violations. Deliberate indifference is determined by
analyzing whether the municipality knew or should have known of the risk of constitutional
violations, an objective standard.” Baker, 326 F.3d at 1306-07 (internal citations omitted). For
such a claim, “[a] showing of simple or even heightened negligence will not suffice.” Bd. of
Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997). Plaintiff’s allegations
should demonstrate that “the plainly obvious consequence of the decision” to retain Kyle in his
current position or without additional oversight, based on what the District knew about his prior
conduct, “would be the deprivation of a third party’s federally protected right.” Id. Because
they do not do so, the Court will dismiss this count as insufficient under § 1983. The Court will,
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however, consider the common-law negligent-supervision claim against the District in Section
III.E, infra.
Having now dismissed all constitutional claims against the District, the Court may
proceed to look at each count individually.
B. Count I: “Deprivation of Property Interest”
Plaintiff’s first count is vaguely entitled “Deprivation of Property Interest” and alleges
that his “dog and other property were seized without lawful cause” and “for an unlawful
purpose,” that damage was done to both his dog and other property, and that he “suffered
additional consequential financial damages by deprivation of lawfully possessed funds.” SAC,
¶¶ 82-87. Rather than challenging the legal sufficiency of these allegations, Defendants dispute
the veracity of Plaintiff’s assertion that he has been permanently deprived of any property. See
MTD at 6. Such an approach fails to take the factual allegations in the Complaint as true, as
required on a Rule 12(b)(6) motion. Iqbal, 556 U.S. at 678. It therefore cannot provide the basis
for dismissal of Count I.
Yet there is a more fundamental flaw inherent in this count. To begin, Plaintiff never
explains whether he is asserting a Fourth Amendment claim for an improper seizure of property
or a Fifth Amendment claim for a deprivation of property without due process. If it is the
former, then the count is identical to Count III. If it is the latter – although Thorp never mentions
due process or the Fifth Amendment – it cannot survive. While the deprivation of property
without due process of law is, to be sure, a violation of the Due Process Clause of the Fifth
Amendment, “[t]he Fourth Amendment expressly governs the genus of pretrial deprivations
alleged in this action – the seizure of [P]laintiff’s personal property.” Robinson v. Pezzat, 83 F.
Supp. 3d 258, 265 (D.D.C. 2015); see also Elkins v. District of Columbia, 690 F.3d 554, 562
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(D.C. Cir. 2012) (holding that Plaintiff could not “use the search of her home or the seizure of
documents as grounds for a claim under the Fifth Amendment” because “[t]he remedy for any
harm . . . from the search of her home is governed by the Fourth Amendment”). Where, as here,
Plaintiff’s property was seized during a pretrial search, complaint of that seizure sounds in the
Fourth Amendment. The Court, accordingly, will dismiss Count I as duplicative of Count III,
wherein Thorp’s unreasonable-search-and-seizure claims lie.
C. Count II: “Deprivation of a Liberty Interest”
Count II is even more confounding. Labeled “Deprivation of a Liberty Interest,” it
contains mismatched elements of a Fourth Amendment claim for an improper arrest, a Fifth
Amendment claim for a due-process violation, and a First Amendment claim for unlawful
retaliation. See SAC, ¶¶ 88-93. Such inartful pleading leaves the Court at a loss as to how to
proceed. To give Thorp the benefit of the doubt, the Court will charitably assume he means the
first, since he never explains the due-process violation or alleges how the First Amendment
relates to a “liberty interest.”
If viewed as a Fourth Amendment claim for false arrest, Count II stands on firmer
footing. Although Plaintiff describes the injury at issue as “the violation of the sanctity of his
home, the ongoing seizure of his property without due process, the imposition of burdensome
limitations on his freedom, and the deprivation of the companionship and well being of his dog,”
he also mentions “unlawful arrest.” Id., ¶ 90. “It is well settled that an arrest without probable
cause violates the [F]ourth [A]mendment.” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir.
1987). “An arrest is supported by probable cause if, ‘at the moment the arrest was made, . . . the
facts and circumstances within [the arresting officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing’ that
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the suspect has committed or is committing a crime.” Wesby v. District of Columbia, 765 F.3d
13, 19 (D.C. Cir. 2002) (modifications in original) (quoting Beck v. Ohio, 379 U.S. 89, 91
(1964)). Thorp alleges that he was “arrested and charged by Defendant Kyle with animal cruelty
and possession of illegal drugs,” but that “[s]uch charges lacked any factual basis of lawfully
obtained evidence supporting probable cause.” SAC, ¶¶ 59-60. Taking such allegations as true,
and assuming this is the claim Plaintiff means to assert, the Court believes Thorp has stated a
non-duplicative Fourth Amendment ground for relief. At the same time, the Court will permit
Defendants to subsequently raise a qualified-immunity defense to this claim. They did not do so
in their Motion to Dismiss – presumably because Count II is so ambiguous – but the Court
declines to penalize Defendants for Plaintiff’s lack of clarity.
D. Count III: “Fourth Amendment Deprivation”
Count III, which alleges that Kyle violated the Fourth Amendment through his search of
Plaintiff’s home and seizure of Plaintiff’s property, is in many ways the heart of this lawsuit.
Thorp claims that his “home was broken into, searched and ransacked”; that Defendants lacked
probable cause for the search; that Kyle and his police team went “beyond the scope of what was
permitted by the Superior Court” in the warrant; that they did so knowingly and repeatedly; and
that his property was “seized, damaged, converted, stolen and/or destroyed” despite Defendants’
knowing that such property had “no evidentiary value to any criminal proceeding.” SAC, ¶¶ 95-
100.
Defendants appropriately divide Thorp’s Fourth Amendment claim into four “sub-
claims”: (1) the original animal-cruelty warrant was insufficient; (2) Defendants “executed that
initial warrant improperly” by exceeding its scope and unlawfully seizing or damaging Plaintiff’s
property; (3) the second warrant, which was procured on the basis of the discovered
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amphetamines, was invalid; and (4) the scope of the search under the second warrant was also
improper. See MTD at 7. The Court agrees that these four sub-claims capture the allegations
Plaintiff raises in Count III and will address each in turn.
A. Insufficiency of First Warrant
Thorp initially alleges that the first search warrant, “purportedly and solely for an
allegation of animal cruelty regarding the Plaintiff’s dog,” was “devoid of probable cause that
any offense had occurred” or “that any evidence of any offense would be found inside the
Plaintiff’s home.” SAC, ¶¶ 42-44. According to him, the warrant was based on false statements
of various MPD officers, and the application for it was completed under Kyle’s direction. Id.,
¶¶ 45-46.
In moving to dismiss, Defendants first suggest that the Complaint fails to “explain[] how
Lt. Kyle participated in giving false information when other officers procured the warrant,”
MTD at 7, but the Complaint clearly alleges that the “warrant was made at the behest of” Kyle.
See SAC, ¶ 46. Defendants then argue that Kyle enjoys qualified immunity for the execution of
the first warrant. See MTD at 7-8. “[W]hether an official protected by qualified immunity may
be held personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action . . . .” Anderson v. Creighton, 483 U.S. 635, 639
(1987) (citation omitted). “[W]hen it is obvious that no reasonably competent officer would
have concluded that a warrant should issue[,] . . . [t]he ‘shield of immunity’ otherwise conferred
by the warrant . . . will be lost.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)
(internal quotation marks and citations omitted). Defendants contend that since Kyle did not
himself procure the first search warrant and because it was facially valid, his reliance on the
warrant was reasonable.
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Plaintiff, however, alleges that “Kyle used false information to obtain the animal cruelty
search warrant s[o] that he could search the Plaintiff’s home for illegal drugs, despite having no
probable cause to believe illegal drugs would be found in the home.” SAC, ¶ 52. He also alleges
that the warrant “was based solely upon . . . false statements” and that it was “made at the behest
of” Kyle. Id., ¶¶ 45-46. In essence, Thorp believes Kyle knowingly directed officers in his unit
to secure a search warrant for Plaintiff’s home using false information; if this were true, it would
be objectively unreasonable for Kyle to rely on a search warrant he knew was improperly
procured. The Fourth Amendment is unambiguous that warrants shall not issue without
“probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. That such
“probable cause” cannot be based on false statements motivated by suspicion or animus is
elementary; “[n]o reasonable officer could claim to be unaware of the basic rule.” Groh v.
Ramirez, 540 U.S. 551, 564 (2004). As a result, taking the allegations in the Complaint as true,
the Court cannot conclude that Kyle was entitled to qualified immunity for the procuring of the
first search warrant.
B. Improper Execution of First Warrant
Defendants offer no reason to dismiss the “sub-claim” within Count III relating to the
manner in which the first search was conducted. Plaintiff alleges that the officers knowingly and
repeatedly exceeded the scope of the first warrant; they damaged or stole his property, despite
knowing that it was of no evidentiary value; and they harmed his dog. Because it is unaddressed
in Defendants’ Motion, this portion of Plaintiff’s Fourth Amendment claim may also proceed.
C. Insufficiency of Second Warrant
As a reminder, the officers executed a second search of Thorp’s home pursuant to a
second warrant based on the amphetamines discovered during the first search. With regard to the
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second warrant, Defendants again argue that Kyle is entitled to qualified immunity for relying on
an objectively reasonable warrant. Plaintiff, on the other hand, maintains that there was no
probable cause for the second search – because he had a prescription for a drug containing
amphetamines – and that Kyle knew as much. See SAC, ¶¶ 57-58.
More fundamental than either of these contentions, however, is the relationship between
the two search warrants: the application for the second warrant was premised on the discovery of
drugs in Thorp’s home during the first search. Indeed, the affidavit supporting the second
warrant application averred that “the amount of amphetamines found in [Thorp’s] freezer is more
consistent with intent to distribute and not mere personal use.” MTD, Exh. A (Second Search
Warrant) at 3; see also Andreen v. Lanier, 573 F. Supp. 2d 1, 3 n.1 (D.D.C. 2008) (in civil
challenge to allegedly unlawful search, “[t]he Court may take judicial notice of the search
warrant and affidavit without converting the motion to dismiss into a motion for summary
judgment”). If, as Plaintiff alleges, the first warrant was invalid and Kyle, knowing it to be so,
violated the Fourth Amendment in conducting the first search, then any evidence obtained as a
result of that search would constitute “fruit of the poisonous tree.” The second search warrant
could be valid only if it were premised on evidence obtained independently of the first, unlawful
search. See Segura v. United States, 468 U.S. 796, 799 (1984) (“[W]e hold that the evidence
discovered during the subsequent search of the apartment the following day pursuant to the valid
search warrant issued wholly on information known to the officers before the [unlawful] entry
into the apartment need not have been suppressed as ‘fruit’ of the illegal entry because the
warrant and the information on which it was based were unrelated to the entry and therefore
constituted an independent source for the evidence.”) (emphasis added); see also Murray v.
United States, 487 U.S. 533, 542 (1988) (“The ultimate question, therefore, is whether the search
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pursuant to warrant was in fact a genuinely independent source of the information . . . . This
would not have been the case if the agents’ decision to seek the warrant was prompted by what
they had seen during the initial [illegal] entry, or if information obtained during that [first] entry
was presented to the Magistrate and affected his decision to issue the warrant.”).
Because Defendants never contend that the second search warrant was obtained with
information from an “independent source” – untied to the first, allegedly defective warrant – the
Court concludes that this portion of Count III – alleging that the second search was unlawful –
states a claim for relief. It, accordingly, survives Defendants’ Motion.
D. Improper Execution of Second Warrant
Defendants present no basis for dismissal of Thorp’s claim that the manner of execution
of the second warrant violated the Fourth Amendment. Hence, insofar as Count III alleges that
the second search was conducted unlawfully, it also may proceed.
E. Count IV: “Negligent Supervision/Negligent Retention”
Next, Plaintiff alleges that the District knew that Kyle “conduct[ed] unlawful searches of
private property” and “rewarded and encouraged [this] misconduct” by promoting him. See
SAC, ¶¶ 103-104. Such behavior, he contends, constitutes negligent supervision. Id., ¶¶ 105-
107.
In moving to dismiss, Defendants argue only that this count cannot be maintained against
Kyle, since he obviously cannot supervise or retain himself. Although Plaintiff never specifies
which counts are alleged against which Defendants, the Court assumes he only meant to plead
this one against the District. To the extent Count IV is asserted against Kyle, he is dismissed as a
Defendant.
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F. Count V: “Conspiracy to [D]eprive Plaintiff of Civil Rights”
Count V alleges a “Conspiracy to deprive Plaintiff of Civil Rights.” SAC, ¶¶ 108-111.
Seeking dismissal, Defendants contend that Thorp’s allegations are too vague and conclusory to
make out the elements of conspiracy, see MTD at 9-10, and the Court concurs.
A conspiracy is comprised of three elements: (1) an agreement between multiple entities
(2) to injure another and (3) an overt act taken in furtherance of that agreement. Brady v.
Livingood, 360 F. Supp. 2d 94, 104 (D.D.C. 2004) (citation omitted). “To state sufficient facts
to support an agreement, plaintiff should allege the existence of any events, conversations, or
documents indicating there was an agreement between the defendants to violate his rights.”
Bush v. Butler, 521 F. Supp. 2d 63, 68 (D.D.C. 2007). “A complaint must set forth facts making
the existence of a conspiracy plausible; conclusory statements are not enough.” Kenley, 83 F.
Supp. 3d at 30.
Here, as in Butler, Plaintiff “provides no description of the persons involved in the
agreement, the nature of the agreement, what particular acts were taken to form the conspiracy,
or what overt acts were taken in furtherance of the conspiracy,” but offers only “[t]he mere
repetition of a conclusory statement that a conspiracy exists and that all the alleged events
occurred as a result.” Butler, 521 F. Supp. at 68-69.
In setting out the count, Thorp alleges only that “Defendant Kyle and other persons,
including Henderson, have conspired to deprive the Plaintiff of his ordinary constitutional
rights.” SAC, ¶ 109. The most directly relevant allegation in the factual section of the
Complaint states that “Defendant Kyle has regularly communicated with Henderson and
unknown members of the Metropolitan Police Department Command Staff to conspire to use
assets and personnel of the Metropolitan Police Department to intimidate and retaliate against the
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Plaintiff for his exercise of ordinary civil processes to seek redress against Henderson for her
tortious acts.” SAC, ¶ 34. Yet this is insufficient. For instance, the Complaint never explains
how Henderson, a key figure in the purported conspiracy, directed or participated in the activities
of Kyle and his fellow officers. Similarly, Thorp maintains that Kyle and other officers harassed
him with the intent of intimidating him but does not articulate the goal of such intimidation –
after all, he had already prevailed in his lawsuit against Henderson before the commencement of
the events detailed in the Complaint. And while Thorp at one point alleges that “searches for
illegal drugs were Kyle’s true motivation for the search of the Plaintiff’s home,” id., ¶ 51, he
elsewhere insists that Kyle was motivated by his romantic animus. See id., ¶¶ 29, 130. Thorp
also stops short of explaining the connection of such animus to Henderson or in any way
clarifying the nature or form of their agreement.
In sum, the Complaint’s vague and somewhat contradictory allegations are precisely the
sort that are “insufficient as a matter of law” to state a claim of civil conspiracy. Butler, 521 F.
Supp. 2d at 69. The Court, consequently, will dismiss this count.
G. Count VII: “Common Law Malicious Prosecution”
In Counts VI and VII, Thorp seeks to advance a claim of malicious prosecution under
§ 1983 and D.C. common law, respectively; because resolution of the latter is more
straightforward, the Court will tackle it first. To support a malicious-prosecution claim in the
criminal context, “[t]here must be (a) a criminal proceeding instituted or continued by the
defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c)
absence of probable cause for the proceeding, and (d) malice, or a primary purpose in instituting
the proceeding other than that of bringing an offender to justice.” Amobi v. D.C. Dep’t of Corr.,
755 F.3d 980, 992 (D.C. Cir. 2014) (quoting DeWitt v. District of Columbia, 43 A.3d 291, 296
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(D.C. 2012)) (internal quotation marks omitted). In this case, the parties’ dispute centers on the
second element. Plaintiff alleges that “Kyle and other unknown persons instituted the criminal
proceeding maliciously” against Plaintiff, but that “[s]uch criminal prosecution has terminated in
the Plaintiff’s favor.” SAC, ¶¶ 115, 118. Defendants, meanwhile, insist that merely alleging a
“favorable termination” is insufficient to establish the first prong of a malicious-prosecution
claim. See MTD at 12 (“Showing that a criminal action was dismissed is not enough; he must
show it was dismissed with prejudice.”) (citations omitted).
Defendants are correct that the termination of the criminal proceedings must “reflect on
the merits of the underlying action.” Brown v. Carr, 503 A.2d 1241, 1245 (D.C. 1986) (internal
quotation marks and citation omitted). They are also correct that this normally requires a
showing of dismissal with prejudice. See Kenley, 83 F. Supp. 3d at 42 (dismissing common-law
malicious-prosecution claim due to the “shortcoming [of Plaintiff] Kenley’s failure to allege that
the [criminal] charges were dismissed with prejudice”). Thorp’s Complaint suffers from the
same defect noted in Kenley. Not only does it fail to allege that his prosecution was dismissed
with prejudice, but it includes no additional details about the termination of the criminal
proceedings beyond the assertion that it was “favorable.” The bare allegation of a favorable
termination is not enough, without specific factual allegations detailing the nature or cause of
that termination, to raise the viability of the malicious-prosecution claim “above the speculative
level.” Twombly, 550 U.S. at 555.
Further undermining this count is Defendants’ submission of the docket for Thorp’s
criminal case, which includes the notation that it was “Dismissed for Want of Prosecution”
because “Government was not ready to proceed with this case.” MTD, Exh. B (criminal docket
sheet) at 2. This, of course, is a dismissal without prejudice. The Court may take judicial notice
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of this criminal docket sheet when adjudicating a motion to dismiss, see Kenley, 83 F. Supp. 3d
at 43, and will do so here. Thorp “does not allege that the prosecutor gave any reasons – e.g., a
lack of evidence – during the Superior Court proceedings for abandoning the charges,” id. at 42,
and therefore has not satisfied the favorable-termination prong of a malicious-prosecution claim
under D.C. law. As a result, the Court will dismiss Count VII.
H. Count VI: “§ 1983 Malicious Prosecution”
In Count VI, Thorp seeks to advance the same claim under Section 1983, which, in this
circuit, requires a predicate Fourth Amendment violation. See Pitt, 491 F.3d at 511 (“We join
the large majority of circuits in holding that malicious prosecution is actionable under 42 U.S.C.
§ 1983 to the extent that the defendant’s actions cause the plaintiff to be unreasonably ‘seized’
without probable cause, in violation of the Fourth Amendment.”). Plaintiff has alleged that he
“was seized and deprived of his liberty following his arraignment,” which provides the predicate
Fourth Amendment violation. See SAC, ¶ 117.
Defendants raise two bases for dismissal of this § 1983 claim. First, they believe it is
redundant of Thorp’s Fourth Amendment claim in Count III. See MTD at 11. The Court need
not decide whether a plaintiff could concurrently make out both a wrongful-seizure and a
malicious-prosecution claim under § 1983 regarding the same conduct. This is because
Plaintiff’s Fourth Amendment claim in Count III concerns conduct different from what is at issue
in this count. More specifically, while Thorp’s Fourth Amendment claim focuses on improper
searches and seizures of his property, see SAC, ¶¶ 95-96, his § 1983 malicious-prosecution claim
complains specifically of the seizure of his person “following his arraignment.” Id., ¶ 117.
Plaintiff alleges that he “was subjected to burdensome and humiliating conditions of pre-trial
release which included drug testing and weekly interviews with court officials,” and that such
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conditions amounted to an unlawful seizure. Id., ¶ 76. As this allegation is factually distinct
from those found in Count III (and Count II), it is not redundant.
Second, Defendants argue that the § 1983 claim must be dismissed because Plaintiff does
not allege facts indicating that the criminal prosecution was terminated in his favor – not just
dismissed – a requirement of a malicious-prosecution claim under D.C. common law. See
Section III.G, supra. The D.C. Circuit has not held that the requirements for a common-law
malicious-prosecution claim under D.C. law apply with equal force to one brought under § 1983.
In Pitt, that court’s first and only pronouncement on the topic, it mentioned only that the
underlying criminal proceedings against the Plaintiff were “dismissed” – not dismissed with
prejudice – because the parties did not contest Plaintiff’s innocence of the underlying criminal
charges in that appeal. See Pitt, 491 F.3d at 501.
Defendants cite Wallace v. Kato, 549 U.S. 384, 391 (2007), in support of their position
that a favorable termination is required for this count, but in that case the Supreme Court actually
declined to decide whether a malicious-prosecution claim is even cognizable under § 1983 – so
the Court certainly did not spell out the elements of such a claim. Id. at 390 n.2; see also
Albright, 510 U.S. at 274-75 (noting “the Fourth Amendment’s relevance to the deprivations of
liberty that go hand in hand with criminal prosecutions,” but “express[ing] no view” as to
whether an improper-prosecution claim brought under the Fourth Amendment and § 1983 could
succeed).
At the same time, several other circuits have held that a favorable termination is required
for a § 1983 malicious-prosecution claim. See, e.g., Kossler v. Crisanti, 564 F.3d 181, 186 (3d
Cir. 2009) (holding that plaintiff’s “fail[ure] to establish . . . the favorable termination of his
underlying criminal proceeding—was fatal to his claims” of malicious prosecution under
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§ 1983); Murphy v. Lynn, 118 F.3d 938, 943 (2d Cir. 1997) (“[I]n order to succeed on a
malicious prosecution claim under § 1983, [plaintiff] was required to prove . . . the termination
of that proceeding in favor of the plaintiff”) (internal quotation marks omitted); Brooks v. City of
Winston-Salem, N.C., 85 F.3d 178, 183-84 (4th Cir. 1996) (“[A plaintiff’s] allegations that [the
defendant] seized him pursuant to legal process that was not supported by probable cause and
that the criminal proceedings terminated in his favor are sufficient to state a § 1983 malicious
prosecution claim alleging a seizure that was violative of the Fourth Amendment.”). And in the
§ 1983 false-arrest context, the Supreme Court has emphasized the importance of the favorable-
termination requirement, underscoring that it “avoids parallel litigation over the issues of
probable cause and guilt . . . and it precludes the possibility of . . . two conflicting resolutions
arising out of the same or identical transaction.” Heck v. Humphrey, 512 U.S. 477, 484 (1994)
(internal quotation marks and citations omitted).
In light of that consideration, and because the weight of authority supports this approach,
the Court will follow those circuits requiring a showing of favorable termination for a § 1983
malicious-prosecution claim. And because, as explained in Section III.G, supra, Plaintiff has not
sufficiently alleged such facts, the Court will dismiss Count VI.
I. Counts VIII and IX: “Abuse of Process I & II”
Counts VIII and IX both allege that, in his interactions with Thorp, Kyle abused his
position as a police officer with authority within the criminal-justice system. The counts are
labeled “Abuse of Process I” and “Abuse of Process II.” SAC, ¶¶ 124-131. Defendants argue
that these counts “are the same claim, with two different allegations of an ulterior motive for Lt.
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Kyle,” MTD at 12, and they insist that the District is not liable under these counts. The Court
will first address the issue of consolidation.
To state a claim for abuse of process, Plaintiff must establish “two essential elements . . .
. : ‘(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as
would be proper in the regular prosecution of the charge.’” Id. (quoting Hall v. Hollywood
Credit Clothing Co., 147 A.2d 866, 868 (D.C. 1959)). Here, the gravamen of both abuse-of-
process counts appears to be that Kyle exercised his law-enforcement authority improperly –
either “to retaliate against the Plaintiff for his civil claims against Henderson” (Count VIII, SAC,
¶ 126) or “to punish and injure the Plaintiff because of some animosity caused by Kyle’s and the
Plaintiff’s relationship history with the same woman” (Count IX, SAC, ¶ 130). Because both
counts allege, at bottom, that the same set of acts taken by Kyle were motivated by improper
aims, the Court will consolidate them into a single abuse-of-process count moving forward.
In their Motion, Defendants also contend that “[n]either of Plaintiff’s abuse of process
claims appears to be against the [D]istrict.” MTD at 12. The Court concurs that this is so, as the
Complaint neither alleges that the District shares Kyle’s “ulterior motives,” nor that it was
motivated by other ulterior motives of its own. See MTD at 13. While the Complaint does not
allege that the District was directly liable for any abuse of process relating to Plaintiff, the Court
nevertheless believes that a reasonable factfinder could find the city vicariously liable under the
doctrine of respondeat superior. According to that doctrine, “an employer may be held liable for
the acts of his employees committed within the scope of their employment.” Brown v.
Argenbright Sec., Inc., 782 A.2d 752, 757 (D.C. 2001) (quoting Boykin v. District of Columbia,
484 A.2d 560, 561 (D.C. 1984)).
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The District asserts that it cannot be vicariously liable for any abuse of process because
the only actions in the Complaint that “could serve as the act that is an ‘abuse’ of the process
against Plaintiff” were “the allegedly fraudulent search warrant affidavits used to start the
process against Plaintiff” and “Kyle allegedly lying to the Assistant United States Attorney”;
these acts, the city maintains, are outside the scope of Kyle’s employment. See MTD at 13. The
Court does not agree. Such conduct – applying for a search warrant and communicating with a
prosecutor – readily falls within the scope of Kyle’s employment with MPD, rather than being
activity that “is different in kind from that authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to serve” his employer. See District of Columbia v.
Coron, 515 A.2d 435, 437 (D.C. 1986). This is precisely the sort of activity in which MPD
officers typically engage. And even if some of Kyle’s motives were purely his own, where the
employee “acted, at least partially,” to serve his employer’s interests, his actions still fall within
the requisite “scope” of employment. Hechinger Co. v. Johnson, 761 A.2d 15, 25 (D.C. 2000).
In any event, “[s]cope of employment is ordinarily a question for the jury,” Doe v. Sipper, 821 F.
Supp. 2d 384, 388 (D.D.C. 2011), and here the Court cannot conclude that, as a matter of law,
Kyle’s actions were outside such parameters. The Court will thus consolidate Counts VIII and
IX into a single abuse-of-process claim, which will proceed on a direct-liability theory as to Kyle
and a vicarious-liability theory as to the District.
J. Count X: “Injunctive Relief”
The District seeks dismissal of Plaintiff’s final count, which Thorp labels as a claim for
“Injunctive Relief,” because it does not state a stand-alone cause of action. See SAC, ¶¶ 132-33;
MTD at 14. The District is correct that “[i]njunctive relief . . . is not a freestanding cause of
action, but rather – as its moniker makes clear – a form of relief to redress the other claims
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asserted by Plaintiff.” Base One Technologies, Inc. v. Ali, 78 F. Supp. 3d 186, 199 (D.D.C.
2015). The Court will therefore dismiss Count X as a separate claim. Such dismissal, however,
does not preclude Thorp from seeking injunctive relief in the event that he ultimately prevails on
one or more of his claims. See id.
K. Plaintiff’s Motion for Partial Summary Judgment
In addition to opposing Defendants’ Motion to Dismiss, Plaintiff also filed his own
Motion for Partial Summary Judgment. In that Motion, he states that because there is “no factual
dispute that the District of Columbia seized at least $53,326 in currency from the Plaintiff on
February 4, 2015, [and] that there is neither a criminal proceeding pending against the Plaintiff
nor a civil forfeiture proceeding, . . . the District of Columbia deprives the Plaintiff of such
currency in violation of the law.” Partial MSJ at 1. Finding that Plaintiff falls far short of the
showing required to succeed under Rule 56, the Court will deny the Motion.
To begin, Thorp’s Motion never identifies the count on which he would like the Court to
grant summary judgment. While the Motion contends that the District seized an amount of cash
in excess of $53,000 and has not returned it, neither that figure nor any other particular amount
of currency appears anywhere in the Complaint. Without knowing which count is at issue, the
Court, of course, cannot determine that he is “entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
At best, the Court can only speculate that Thorp means to ask the Court for summary
judgment on part of Count III, which alleges that “Plaintiff’s dog and other property were seized
without lawful cause,” SAC, ¶ 83, without specifying what items are included in this “other
property.” Even such an assumption, however, would not cure all the deficiencies of the Motion.
For Plaintiff also fails to specify where, in the record, the Court may find evidence establishing
25
that there is no genuine dispute on the factual issues material to the relief he seeks. Yet “it is
[his] obligation, and not this Court’s, to locate and cite to the appropriate portions of the record
that support [his] arguments on summary judgment. In order to ensure clarity of argument, the
parties may not incorporate by reference factual statements made in other pleadings, but each
motion must independently contain all facts that the party believes are relevant to resolution of
the issues raised in that particular motion.” Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94,
99 (D.D.C. 2010). In this district, Local Rule “7(h)(1) places the burden on the parties and their
counsel, who are most familiar with the litigation and the record, to crystallize for the district
court the material facts and relevant portions of the record,” not least because failure to do so
“leaves the Court to guess which of the many factual statements set forth . . . are purportedly of
relevance to the instant motions.” Id. (internal quotation marks omitted) (citing Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996)). Absent
any citations to the record, or to any evidence whatsoever, Plaintiff cannot establish his
entitlement to summary judgment at this time.
Defendants, moreover, contest nearly all of the “undisputed facts” enumerated in Thorp’s
Motion – including the amount of money seized and the existence of civil-forfeiture proceedings
pending against Plaintiff. See Defendants’ Statement of Material Facts in Dispute, ¶¶ 2-5.
Where the nonmovant has “set forth specific facts showing that there is a genuine issue for trial,”
summary judgment is not appropriate. Anderson, 477 U.S. at 256. Because Plaintiff has not
demonstrated the absence of a dispute of material facts and his entitlement to judgment as a
matter of law, the Court will deny his Motion for Partial Summary Judgment.
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IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Partial Summary
Judgment, and grant in part and deny in part Defendants’ Motion to Dismiss. The counts that
survive Defendants’ Motion are: Counts II and III, against Kyle only, and for the specific Fourth
Amendment violations noted; Count IV, under D.C. common law, against the District only; and
Counts VIII and IX, consolidated into a single claim against Kyle on a direct-liability theory and
against the District on a vicarious-liability theory. The Court will issue a contemporaneous
Order to that effect this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 5, 2015
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