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April 8, 2005.

SIDNEY WISE, JR., Plaintiff,

The opinion of the court was delivered by: SUZANNE CONLON, District Judge


Sidney Wise was terminated from his position as Chief of Contracting and Procurement for the District of Columbia's Commission of Mental Health Services ("CMHS"). As a result of his termination, he sues the District of Columbia ("the District"), Elizabeth Jones, CMHS chief operating officer, Dr. Scott Nelson, former court-appointed receiver for CMHS, Denny Jones, court-appointed receiver for CMHS, and Evette Jackson, director of community services agency, for violating his civil rights and First Amendment right to speak on matters of public concern (Counts I and V), wrongful termination (Count II), and intentional infliction of emotional distress (Counts III and IV). The District and Elizabeth Jones (collectively, "defendants") move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment. The remaining defendants were never served during the two years this case has been pending. On March 13, 2005, movants gave Wise notice of his failure to serve the other defendants. On March 22, 2005, the court issued a rule to show cause why Scott Nelson, Denny Jones and Evette Jackson should not be dismissed pursuant to Fed.R.Civ.P.4(m), and for want of prosecution under Fed.R.Civ.P.41(b). Wise failed to respond to the rule to show cause.*fn1


  For purposes of this motion to dismiss, the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in Wise's favor. See Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). The court does not accept as true legal conclusions couched as factual allegations, such as Wise's allegations in ¶¶ 57, 62, 73, 74, 77 and 78 that the individual defendants acted as District policy-makers and/or agents. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

  Wise was hired as CMHS Chief of Contracting and Procurement on April 13, 1998, CMHS was in receivership and Dr. Scott Nelson was the receiver at the time. CMHS remained in receivership throughout the duration of Wise's employment. When Wise was hired, CMHS contract and procurement system was in disarray and failed to comply with District of Columbia and federal contracting and procurement laws and regulations. Wise implemented several new procedures to enhance CMHS contract and procurement operations. Wise's superiors resisted the changes. As a result, contracts continued to violate District of Columbia and federal contracting and procurement laws. Wise complained of the violations to the receiver and Evette Jackson, director of community services agency ("CSA"), a subdivision of CMHS. Wise also complained that contractors performed work without a contract in violation of contract and procurement laws and regulations. Around March 2000, Price Waterhouse audited CMHS contracting procedures. Wise sent Denny Jones a letter requesting an opportunity to review and comment on the draft audit report. Denny Jones and Elizabeth Jones refused to allow him to review or to comment on the draft audit report in retaliation for his complaints about the contract violations.

  On April 14, 2000, Elizabeth Jones asked Wise to resign because of information reported in Price Waterhouse's audit report. Wise again asked to review the audit report; his request was denied. On April 17, 2000, Wise attempted to resign. His resignation was not accepted, but he was terminated. On April 20, 2000, the Washington Post reported that Wise was terminated for poor performance. On April 27, 2000, Wise received written notice of termination from Elizabeth Jones. The notice did not contain a reason for his termination. Wise's personnel records reflect a May 15, 2000 termination date.


  I. Legal Standard

  Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P.12(b)(6) or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56. In support of their motion, defendants submitted a statement of undisputed facts with supporting documents. Wise argues the supporting documents cannot be considered by the court because they are inadmissible under Fed.R.Civ.P. 56(e). In deciding this motion, the court does not rely on the statement of undisputed facts or the supporting documents, other than the public records in Fantasia v. Office of the Receiver, Case No. 01-1079, Jennings v. District of Columbia, Case No. 02-314, and Dixon v. Harris, Case No. 74-285. Defendants' motion is therefore properly treated as a Rule 12(b)(6) motion to dismiss. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (court may take judicial notice of public records when deciding motion to dismiss); Davis v. Bayless, 70 F.3d 367, 372, n. 3 (5th Cir. 1995) (court took judicial notice of court orders authorizing receiver's actions).

  A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to dismiss should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.

  II. Counts I and V

  In Counts I and V, Wise alleges defendants violated his civil rights under 28 U.S.C. § 1983 and his First Amendment right to free speech. More specifically, he alleges Elizabeth Jones and Jackson violated his First Amendment rights by creating a hostile work environment, terminating his employment, and making false and defamatory statements about him in retaliation for speaking out on matters of public concern. He alleges Denny Jones and Nelson violated his First Amendment right by permitting Elizabeth Jones and Jackson to retaliate against him. He seeks to hold the District liable for the acts of Denny Jones and Nelson, claiming they were final policy-makers for the District regarding personnel matters. Complaint ¶ 57. He further alleges the individual defendants acted pursuant to a District custom, plan or policy to retaliate against employees who complained of illegal conduct. Id. at ¶¶ 49-57. Finally, he alleges the District's failure to supervise, monitor or train its agents caused the constitutional violations. Id. at ¶¶ 77-78. Defendants argue Counts I and V must be dismissed against them because the District and its employees were divested of all authority over CMHS personnel matters as a result of the court-imposed receivership. On June 13, 1997, this court appointed a receiver to "oversee, supervise, and direct all financial, contractual, legal, administrative, and personnel functions of the CMHS, and to restructure the CMHS. . . ." Dixon v. Barry, 967 F.Supp. 535, 555 (D.D.C. 1997). The receivership order granted the receiver:
1. All powers over the CMHS currently exercised by the Commission of Mental Health Services, the Director of Human Services, and the Mayor of the District of Columbia. 2. The power to establish personnel policies; to create, abolish or transfer positions; to hire, terminate, promote, transfer, evaluate, and set compensation for staff. . . . [and] 4. The power to restructure and reorganize the management and administrative divisions of the CMHS.
Id. at 555-556. Defendants argue they cannot be liable for Wise's termination or any retaliatory personnel decisions because the receiver had full authority over personnel matters, and they are not liable for the receiver's actions. The court agrees.

  In Jennings v. District of Columbia, 02-314 (GK) (D.D.C. December 10, 2002),*fn2 the plaintiff sued the District as a result of injuries she allegedly sustained while residing at a CMHS facility. The court dismissed the complaint because CMHS was in receivership at the time of the injuries. This court held as a matter of law that the District is not responsible for the receiver's actions because the Dixon receivership order divested the District of all power over the CMHS. Plaintiff contended she did not seek to hold the District liable for the receiver's actions, but rather for the District's unconstitutional policy of placing persons with mental illness in unlicensed and dangerous facilities. The court rejected this argument because the Dixon receivership order completely divested the District of all power over CMHS, including the power to develop and carry out CMHS policies. Jennings, slip op. at 6-7.

  Similarly, in Fantasia v. Office of the Receiver of the Commission on Mental Health, 2001 U.S. Dist. LEXIS 25858 (D.D.C. December 21, 2001),*fn3 plaintiff sued CMHS, among others, arising out of his termination from employment as director of financial services for CMHS. The court dismissed the complaint against CMHS because the Dixon receivership order divested CMHS and the District of authority over personnel matters. Id. at *17. The court concluded:
[i]t would be unjust to hold the District or Commission liable for activities undertaken by a court-appointed Receiver, where the Receiver, for the Court exercised full authority over the Commission's operations, including personnel functions, without any oversight from the District. Indeed, the Commission and the District not only lacked the power to override the ...

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