the Constitution on behalf of his claim, depriving the Due Process guarantee of weight and of meaning. Case law does not support such an expansion. Thus, although due process would be required to deprive a qualified officer of administrative sick leave, when an officer has failed to demonstrate that he satisfied the statutory conditions of the leave, he has no constitutionally protectible property interest therein. Absent such a determination, plaintiff does not have a "legitimate claim of entitlement" to the leave.
Plaintiff's claim is not enhanced by his challenge to the Department's factual conclusion that his October 1981 injuries were not duty-related. Channels of administrative review exist to review that decision. Having failed to pursue timely administrative relief, plaintiff cannot now obtain judicial determination of his injury status in the guise of a constitutional claim. Thus, because plaintiff was not placed on administrative sick leave for his October 1981 injuries, and because he was found not to meet the threshold qualifications for leave, he has not established a constitutional property interest in the leave.
Even if he could be found to have a protectible interest in the sick leave, he was given notice of the denial of his claim, and an opportunity for a hearing to challenge the denial. In challenging the adequacy of this process, plaintiff contends only that he misunderstood the purpose of the hearing, and, thinking it related to a later benefit claim, elected not to attend. The deficiency in the process accorded - if any - lies not with defendants, but with plaintiff's election to waive his opportunity to present his claims. Accordingly, plaintiff's claims under the Due Process Clause or §§ 1983 or 1985, based on the denial of administrative sick leave, must be dismissed.
B. Representation or Fees in the Wrongful Death Suit
Plaintiff's alleged property interest in representation or attorneys fees is based on D.C. Code § 4-143. It is undisputed that the civil action at issue is for the wrongful death of Adam Boyd, based not on his wrongful arrest, but on plaintiff's excessive use of force in the off-duty encounter. As with his claim for administrative leave, plaintiff cannot show that he meets the statutory factual predicates for the benefit he seeks. Since he has no legitimate claim of entitlement to any benefit under § 4-143, he has no property interest therein to which the guarantees of due process attach.
C. Service Weapon Use Review
This claim centers on the administrative review of plaintiff's use of his service weapon in the shooting of Adam Boyd. The Weapons Review Board found the use to be unjustified, and the administrative appeal of this decision is still pending. Only the Chief of Police can initiate adverse action against plaintiff for the use of his weapon, and no recommendation will be made to the Chief until the pending administrative appeal is resolved. Thus, plaintiff has not been deprived of any employment related benefits because of the Board's review, nor has he been dismissed, demoted or suspended.
The procedural scheme for review of weapons use may assist plaintiff in establishing a property interest in his employment, such that action affecting his employment status and based on his weapon use could not be taken summarily, without due process. Plaintiff cannot, however, establish a property interest in the review process alone. The procedural deficiencies plaintiff catalogues in the administrative review of his weapon use do not rise to the level of a constitutional claim, since the review has not affected an interest of constitutional dimension. Although the existing adverse finding by the Board may in some respects damage plaintiff's reputation, it is generally held that mere injury to reputation is not a deprivation of a constitutionally protected interest. E.g., Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
Plaintiff also states that the Board's review represents selective, malicious prosecution. It is not clear whether a common-law claim of malicious prosecution rises to a constitutional claim of violation of due process under § 1983 if it is not accompanied by a claim of substantive constitutional deprivation. Compare Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 773-74 (D.C. Cir. 1979) (citing with approval cases dismissing such § 1983 actions) with Dellums v. Powell, 490 F. Supp. 70, 72-73 (D.D.C. 1980) (elements of common law malicious prosecution tort make out claim under § 1983 for deprivation of liberty without due process). Even assuming plaintiff could assert a liberty interest deprivation, he cannot at this time establish the necessary elements of malicious prosecution. District of Columbia law requires a plaintiff to prove: (1) malicious institution of a civil or criminal action,
(2) without probable cause, (3) which terminated in favor of the defendant therein and (4) which caused the defendant's arrest, or seizure of his property, or a "special injury to the defendant which would not necessarily result in suits prosecuted to recover for like causes of action." Weisman v. Middleton, 390 A.2d 996, 1002 (D.C. App. 1978). Plaintiff does not contest that defendants had sufficient "cause" to initiate administrative review. Further, the proceedings have not terminated in plaintiff's favor, and have not effected the requisite arrest, seizure or special injury. See e.g. Mazanderan v. McGranery, 490 A.2d 180, 181 (D.C. App. 1984) ("pain and distress of mind and body . . . do not rise to the level of special injury" in a malicious prosecution claim).
The delay in the administrative review of plaintiff's weapon use gives the Court some concern. It is now nearly five years after the shooting incident, and plaintiff has no final Departmental determination of the propriety of his decision to use his weapon. Surely the internal review process was established as much to give uniformed officers guidance in their weapon use, as it was to ensure compliance with Departmental standards of conduct. Although the Court does not see that an injury of constitutional dimension has been produced by this sluggish review, continued delay may well work to plaintiff's detriment and inflict some loss against which the Constitution guards.
At this point, however, there is no such injury.
Thus, since plaintiff has failed to establish any injury of constitutional dimensions resulting from the Board's actions, his claims for relief based on the USWRB review must be dismissed.
D. Back Pay
Plaintiff was suspended without pay, based upon his indictment for manslaughter, from March 31, 1983 until his acquittal on September 20, 1984. Although he was immediately reinstated following his acquittal, his request for back pay and benefits for the period of his suspension was denied pursuant to Department policy. Pltf. Exh. 8. The appeal he filed with the Office of Employee Appeals on October 31, 1984 over this denial is still pending. Plaintiff claims that the denial of his request deprived him of a protected property right in his back pay.
Plaintiff claims that the Back Pay Act, 5 U.S.C. § 5596, secures his entitlement to pay for the period of his suspension, since he was acquitted of the criminal charge upon which his suspension was based. The District of Columbia Comprehensive Merit Personnel Act, D.C. Code § 1-601.1 et seq., made the Back Pay Act inapplicable to District employees as of September 26, 1980. See D.C. Code § 1-633.2(a)(5)(G); see generally District of Columbia v. Merit Systems Protection Board, 246 U.S. App. D.C. 35, 762 F.2d 129, 131 n.1 (D.C. Cir. 1985) (noting present supercession of Back Pay Act); Brown v. Jefferson, 451 A.2d 74, 74 n.1 (D.C. App. 1982) (noting supercession of 5 U.S.C. § 6324 as to uniformed District employees). Clearly, plaintiff cannot acquire any property interest thereunder. Local law does not provide an analogous right to back pay, and the labor agreement in effect at the time, while providing for immediate reinstatement in such circumstances, is silent as to back pay. Def. Exh. Q, Article 13, § 11. Thus, plaintiff has no cognizable property interest in back pay for the period of his suspension.
Plaintiff also appears to claim a property right to pay for this period by challenging the propriety of his initial suspension. Local law sets forth the bases for suspending an officer without pay, D.C. Code §§ 4-117, 1-617.1(d)(10),
which may be sufficient to create a protectible property interest in the continued receipt of pay.
Assuming plaintiff had a property interest in pay duty status, the Court's inquiry then shifts to determine what process was provided, and what process was due under the Constitution. See Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Plaintiff's challenge, however, is to the substance of the Department's decision, rather than to the adequacy of the process by which it was implemented. He does not contest that he was indicted, nor that he had a hearing prior to his suspension. He makes no claim that this hearing was inadequate.
He was not suspended until after notice and a hearing, and was informed that he had until April 18, 1983 to appeal his suspension to the Office of Employee Appeals ("OEA"). Def. Exh. I; see D.C. Code § 1-617.1(c) (1981); Harris v. Barry, slip op. at 3 (D.C. App. Dec. 13, 1985) (discusses appeals procedure). Any adverse decision by OEA would have been subject to review by the District of Columbia Superior Court. D.C. Code. § 1-606.3(d) (1981). Plaintiff did not appeal his initial suspension, and thus failed to avail himself of the opportunity provided to protect his property interest. The resultant deprivation is an injury which must lie at plaintiff's own feet. He does not contest the adequacy of the process afforded by this statutory route. The guarantee of Due Process is not intended to provide additional substantive review of a property deprivation unless the relevant procedure was allegedly deficient. Thus, since he suffered no injury of constitutional dimensions in his initial suspension without pay, and since he has no constitutionally protectible property interest in back pay for that period, his claims under the Due Process Clause and § 1983 must be dismissed.
II. Violation of 42 U.S.C. § 1985(3)
Defendants have moved to dismiss plaintiff's claim under § 1985(3) for failure to state a cause of action. To come within the statute, plaintiff's complaint must allege (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 14 (D.C. Cir. 1984). Whatever the other deficiencies of plaintiff's complaint, the foregoing analysis demonstrates that he fails on the fourth element. It is well settled that § 1985(3) "'provides no substantial rights itself' to the class conspired against." United Brothers of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S. Ct. 3352, 3358, 77 L. Ed. 2d 1049 (1983) (" Scott "), quoting Great American Fed. S & L Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). Rather, "the rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere." Scott, 103 S. Ct. at 3358. Plaintiff asserts deprivations of property and liberty interests, created by District of Columbia and federal laws, and secured by the Due Process Clause. Complaint paras. 98-100. The Court has already concluded that plaintiff has no property or liberty interest based on his claims to back pay, sick leave, weapon use review or representation in the wrongful death action. Hence he can have suffered no injury to or deprivation of these interests from any conspiracy unlawful under § 1985(3), and he alleges no other deprivations. In addition, the Court notes that the claim of conspiracy lacks the factual detail necessary to withstand a motion to dismiss. See e.g. Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) (conclusory allegations are insufficient to establish conspiracy under § 1985). Accordingly, Count II must be dismissed.
III. § 1988 and Intentional Tort Claim
The remaining counts must be dismissed as well. 42 U.S.C. § 1988 defines the procedures which must be followed to obtain remedies in civil rights cases; it creates no independent cause of action. E.g., Estes v. Tuscaloosa County, 696 F.2d 898 (11th Cir. 1983). Further, since plaintiff's federal claims are no longer before the Court, the Court lacks power under Article III to adjudicate the pendent claim for intentional infliction of emotional distress. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Doe v. Board on Professional Responsibility, 230 U.S. App. D.C. 367, 717 F.2d 1424 (D.C. Cir. 1983). Thus, Count V must be dismissed.
An appropriate order incorporating the above conclusions accompanies this opinion.
Dated: June 25, 1986
For the reasons stated in the accompanying opinion, it is this 25th day of June, 1986,
ORDERED that defendants' motion for summary judgment is granted, and the above-captioned case is dismissed in its entirety.