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DAY v. D.C. DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

March 12, 2002

WILLIAM R. DAY, A.K.A. AHMED ASSALAAM, PLAINTIFF,
V.
D.C. DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.

MEMORANDUM OPINION GRANTING DEFENDANT LOWERY'S MOTION TO DISMISS; ORDERING FURTHER BRIEFING ON THE ELECTED OFFICIAL DEFENDANTS' MOTION TO DISMISS; RESOLVING ALL OTHER PENDING MOTIONS

I. INTRODUCTION

This civil-rights action comes before the court on the defendants' motion to dismiss for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim on which relief can be granted. The pro se plaintiff, William R. Day, also known as Ahmed Assalaam ("the plaintiff" or "Mr. Day"), brings suit pursuant to 42 U.S.C. § 1983, alleging that on various occasions, officers of the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") and/or the Metropolitan Police Department ("MPD") entered and searched his residence without a warrant, seized his personal property, assaulted and battered him, evicted him from the premises, and ordered him to resign his elected position as an Advisory Neighborhood Commissioner.

One of the defendants, District of Columbia Housing Authority ("DCHA") Officer Jethro Lowery ("Defendant Lowery"),*fn1 moves to dismiss the complaint on the following grounds: first, D.C. Code § 12-309 bars the plaintiff bringing this action because he failed to file a timely notice of his potential claims and report of injury to the District of Columbia ("D.C." or "the District");*fn2 and second, the plaintiff fails to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, a group of co-defendants have filed a joint motion to dismiss. These named defendants include D.C. Mayor Anthony Williams, MPD Chief Charles Ramsey, and D.C. Council members Linda Cropp, Jack Evans, Sharon Ambrose, Harold Brazil, David Catania, Jim Graham, Kathleen Patterson, Vincent Orange, Kevin Chavous, Carol Schwartz, Phil Mendelson, Adrian Fenty, and Sandy Allen ("elected official defendants"*fn3). These defendants move to dismiss the complaint, invoking the qualified immunity defense. For the reasons that follow, the court will grant Defendant Lowery's motion to dismiss, will order further briefing on the elected official defendants' motions to dismiss and will resolve all the other pending motions.

II. BACKGROUND

A resident of the District of Columbia, Mr. Day alleges that in the spring of 1998, DCRA Inspector James Delgado ("Defendant Delgado") and MPD officers used excessive force to enter and search his premises without probable cause, and committed the offenses of assault and battery. See Compl. ¶¶ 2, 37.

Mr. Day also claims that on March 18, 1999, Defendant Delgado, MPD Officer Burgess ("Defendant Burgess"),*fn4 and MPD Officer Kenneth Bookard ("Defendant Bookard") forcibly entered and searched his home without a warrant and assaulted him by trying to frighten him "in a threatening and menacing manner by their abusive conduct." See id. ¶ 38. Furthermore, Mr. Day alleges that Defendant Delgado gave him a citation and then solicited him to participate as an accessory after the fact by asking Mr. Day to render aid to a conspiracy to commit an overt act to dismiss the citation.*fn5 See id. ¶ 39.

On June 8, 1999, Mr. Day claims that Defendant Delgado, Defendant Burgess, and MPD Officer Thompson ("Defendant Thompson"),*fn6 forcibly entered and searched his home without a warrant. See Compl. ¶ 40. He also pleads that Defendant Delgado and Defendant Burgess committed an assault and battery on him by threatening him. See id. ¶ 41. Moreover, Mr. Day alleges that Defendant Delgado violated his First Amendment rights by issuing him a citation for displaying a sign and making derogatory and demeaning statements regarding his exercise of religious beliefs. See Compl. ¶¶ 42-3. Mr. Day also claims that Defendant Delgado violated his constitutional right to "life or liberty without due process of law" when he attempted to prevent Mr. Day from carrying out his lawful duties within the District of Columbia as the elected Advisory Neighborhood Commissioner for Single Member District 2D06 by threatening him in a menacing manner and ordering him to resign from office. See id. ¶ 44. On June 18, 1999, Mr. Day petitioned the District for redress of the alleged civil infractions and filed an official complaint with the MPD's Internal Affairs Division. See id. ¶¶ 34-5.

Next, Mr. Day alleges that on August 10, 1999, Defendant Bookard, MPD Officer D.C. Fails ("Defendant Fails"), MPD Officer Allen Gant ("Defendant Gant"), and Defendant Lowery invaded his property, threatened him, refused to allow him to secure and display his identification and held him liable for actions he had taken as an elected representative. See id. 6 45. Finally, Mr. Day alleges that Defendant Fails and Defendant Bookard failed to make public his arrest or record it in the arrest book. See id.

According to Defendant Lowery, the DCHA had assigned him to the public housing property adjacent to Mr. Day's home. See Def. Lowery's Mot. to Dismiss at 4. While Defendant Lowery recalls a number of MPD officers arriving at the adjacent property, he declares that he was not involved in the activities that occurred in Mr. Day's home on August 10, 1999 or on any other day. See id.

On February 18, 2000, the Hearing Examiner of the DCRA Office of Adjudication issued a decision and order dismissing the civil infractions against Mr. Day. See id. ¶ 36. On April 24, 2001, the plaintiff filed the instant complaint. On May 18, 2001, Defendant Lowery filed a motion to dismiss, and on July 12, 2001, the elected official defendants filed a motion to dismiss.

III. ANALYSIS

A. Legal Standard for a Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court need not, however, accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds by 482 U.S. ...


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