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JAMES v. UNITED STATES

April 10, 1989

ETIM E. JAMES, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants


John H. Pratt, United States District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Plaintiff brings this action pro se against the United States *fn1" and Terry Thomson, an officer in the United States Park Police, alleging various common law and constitutional torts. Plaintiff's complaint contains allegations of unlawful arrest, improper use of force, unreasonable detention, and resulting economic, physical and emotional harm. Presently before us is defendants' Motion to Dismiss or in the Alternative for Summary Judgment. For the reasons that follow, we grant defendants' motion and enter summary judgment in their favor.

 I.

 According to plaintiff, he asked Thomson why he was so sure that his driver's license had been suspended, whereupon Thomson allegedly kicked him, told him he had no right to ask questions, and threw him inside the police car. Plaintiff maintains that as he was being "dumped" inside the police car, he hit his head against the back seat, causing pain to his head and neck. According to defendant Thomson, plaintiff confirmed that he had been driving with a suspended D.C. license before he was arrested. Thomson claims that he placed plaintiff in the back seat of the police car carefully and at no time kicked or threw plaintiff or told him that he had no right to ask questions. From here on the parties' substantially agree on the facts.

 Plaintiff was driven to the Park Police substation at Hains Point in Washington, where Thomson prepared the necessary paperwork to process plaintiff's arrest. Plaintiff was issued a citation for operating a vehicle with a suspended D.C. license, given a citation date of January 12, 1987, and released at approximately 2:30 a.m. *fn3"

 Incident to plaintiff's arrest, Thomson took custody of plaintiff's "Hacker's License" because the license would not have been valid without a valid D.C. driver's license. The day after plaintiff's arrest, November 12, 1986, Thomson forwarded plaintiff's "Hacker's License" to the D.C. Hack Inspector's Office. Without his "Hacker's License," plaintiff was unable to operate his taxi. After waiting almost two months, plaintiff went to the Hacker's office on December 31, 1986 to report the incident to the Hacker's inspector. At that time, plaintiff learned that Thomson had previously turned in plaintiff's "Hacker's License," which was released to him. Plaintiff resumed working the next day.

 II.

 We previously stayed our consideration of defendants' motion to enable plaintiff to file proof of service upon Officer Thomson as well as any supplemental materials regarding defendants' motion for summary judgment. Although plaintiff has filed an affidavit and attachments, which indicate plaintiff mailed a summons and complaint to Officer Thomson, there is no indication in the record that Thomson ever signed for it or ever received it. Nor is there any indication that Thomson was personally served. As we explained to plaintiff in a previous order, Rule 4(d) of the Federal Rules of Civil Procedure requires personal service of the summons and complaint upon each individual defendant. Without personal service, this court is without jurisdiction to render judgment against defendant Thomson in his individual capacity. See Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982); Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir. 1980). The claims asserted against Thomson in his individual capacity must therefore be dismissed. Id.

 Additionally, even if Thomson had been properly served, summary judgment would be appropriate in this case due to Officer Thomson's entitlement to qualified immunity from the claims asserted by plaintiff. Federal officials acting within the scope of their official duties are generally insulated from suit if (1) there existed reasonable grounds for the belief that the challenged action was appropriate, and (2) the officer acted in good faith. The qualified immunity of a federal official attaches unless the official violates a clearly established right of the plaintiff or acts unreasonably under the circumstances. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987). As the Supreme Court has explained, qualified immunity protects from suit "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).

 Regarding plaintiff's false arrest claim, a claim for false arrest can be defeated by the arresting officer's demonstration that he had either probable cause *fn4" or a reasonable basis to believe that a crime had been committed and that the officer acted in good faith. See Koroma v. United States, 628 F. Supp. 949, 952 (D.D.C. 1986); Wilcox v. United States, 509 F. Supp. 381, 384 (D.D.C. 1981). Viewing the facts in the light most favorable to plaintiff, and taking as true plaintiff's representation that his D.C. license was never suspended, we nevertheless find that Officer Thomson's conduct meets the standard of good-faith reasonableness. As the Court of Appeals for the District of Columbia recently clarified, the issue "turns not on whether probable cause to arrest [plaintiff] in fact existed, but on whether [the officer] has established as a matter of law that a reasonable officer in [his] shoes would have believed it to have existed." Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 263 (D.C. Cir. 1987). We find that a reasonable officer in Thomson's shoes, having read the WALES computer report indicating that the D.C. license of the registered owner of the taxi driven by plaintiff was suspended and having been with presented only with a Virginia driver's license issued one month previously, would have believed there to be probable cause to arrest plaintiff for the offense of driving with a suspended D.C. license. *fn5"

 Thomson is similarly entitled to qualified immunity from plaintiff's other claims, *fn6" the most serious of which appears to be the excessive force claim. In Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 261 (D.C. Cir. 1987), the Court of Appeals for the District of Columbia established a reasonableness test for excessive force claims:

 
the balancing test is both objective and fact sensitive; it looks to the "totality of the circumstances" known to the officer at the time of the challenged conduct, and accords a measure of respect to the officer's judgment about the ...

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