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JACKSON v. DISTRICT OF COLUMBIA

October 28, 1987

Ernest Jackson, Plaintiff,
v.
District Of Columbia, et al., Defendants



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, United States District Judge

 I.

 The episode that precipitated this lawsuit occurred on September 13, 1985. At approximately 4 p.m. on that date, plaintiff, Ernest Jackson, was a passenger in an automobile *fn1" that was pulled over at the intersection of 14th and Monroe Streets, N.W., in the District of Columbia, by Metropolitan Police Department Officers Herta Mullen and Bobby Dickens.

 From this point the parties' versions of the ensuing events diverge. *fn2" According to plaintiff, Officer Mullens, who was dressed in plain clothes, approached the car and ordered plaintiff out. After plaintiff complied, Mullens opened the glove compartment, removed a brown bag, and confiscated some "old cigarette stubs" from the car's ash tray. Officer Mullens then claimed that the bag contained cannabis. Plaintiff inquired as to why Mullens was harassing him, to which Mullens responded by handcuffing plaintiff, arresting him for possession of controlled substances, and, accompanied by Officer Dickens, escorted plaintiff to the Fourth District police station.

 Once at the station, plaintiff allegedly overheard and participated in conversations with a sergeant and two police officers, all of whom are unnamed, who informed Jackson that the actual reason for his arrest was that Officer Mullens "had not met her arrest quota for the month." Plaintiff spent the night in jail; the following day charges against him were dropped and he was released.

 Defendants' recollections of the incident differ from that offered by plaintiff in important respects. Officer Mullens avers, inter alia, that she approached the car upon observing plaintiff in the process of inhaling from a hand-rolled cigarette which appeared to contain cannabis. After arresting plaintiff and accompanying him to the police department, Mullens claims that she learned that plaintiff was ineligible for citation release because a bench warrant had been issued for his arrest on January 29, 1972. (Plaintiff denies the existence of any outstanding bench warrants issued in his name.) Hence, according to defendants, plaintiff could not be released until the following day, when the United States Attorney's Office decided that plaintiff would not be prosecuted.

 Plaintiff filed this action on August 7, 1986, naming as defendants the two arresting officers, Herta Mullens and Bobby Dickens; Sergeant Joe Battle, who was responsible for reviewing the arresting officers' paperwork to ensure that it demonstrated probable cause for the arrest; Maurice Turner, the chief of District of Columbia police at the time of the arrest; and the District of Columbia. Plaintiff accuses the arresting officers, inter alia, of arresting and subsequently detaining him without probable cause to do so, as well as failing to read plaintiff his " Miranda rights," all in violation of the fourth and fifth amendments. In addition, he charges the remaining defendants with promoting and promulgating a department-wide policy of initiating unwarranted arrests for the purpose of meeting arrest "quotas" established for each officer.

 II.

 Plaintiff submits that each of his constitutional claims against the named state officials are actionable both directly under the constitution and "indirectly" by virtue of the statutory cause of action provided in § 1983. We disagree. In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and its progeny, see, e.g., Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980), the Supreme Court recognized a cause of action against federal government officials under the Constitution where no other remedy existed in federal law. As expressed in the oft-cited words of Justice Harlan, the implied cause of action was necessary because "for people in Bivens' shoes, it is damages or nothing." Bivens, 403 U.S. at 410 (concurring opinion).

 Courts have recognized that where "Congress has provided an alternative remedial scheme, which is intended to be a substitute for direct recovery under the constitution [- such as § 1983 -] a Bivens-type action is inappropriate." Gladden v. Barry, 558 F. Supp. 676, 678 (D.D.C. 1983) (quoting Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir. 1982), cert. denied, 464 U.S. 932, 78 L. Ed. 2d 305, 104 S. Ct. 335 (1983)). See also Hunt v. Robeson County Dept. of Soc. Services, 816 F.2d 150, 152 n.2 (4th Cir. 1987); Ward v. Caulk, 650 F.2d 1144, 1147-48 (9th Cir. 1981); cf. Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1054 n.19 (D.C. Cir. 1984) ("In a case alleging a Bivens-type claim, federal rather than state action must be alleged in order to sustain the complaint"). *fn3" So-called "federal action" is not involved in this case. All of the named defendants in this action are state officials or agencies and are amenable to suit under § 1983. Accordingly, plaintiff may proceed, if at all, only with his § 1983 claims. *fn4"

 Defendants contend, however, that plaintiff's § 1983 claims are infirm as well. Defendants deny that there is any basis in fact for plaintiff's freewheeling allegations of a department-wide "quota" arrest policy, and assert that plaintiff is unable to establish that Police Chief Turner or Sergeant Battle ratified or otherwise participated in such a policy. Additionally, defendants invoke the cloak of official immunity as a total bar to liability in this case. Our initial task, then, will be to determine whether plaintiff has established a prima facie case of illegal conduct ...


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