Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shaw v. District of Columbia

May 15, 2006

DARRON SHAW, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Darron Shaw brought this action on June 27, 2005. As currently constituted following the parties Stipulation of Partial Dismissal, Plaintiff's Complaint sets forth the following claims arising out of an alleged incident of police brutality at the hands of the Metropolitan Police Department ("MPD"), which occurred on February 15, 2004: (1) Count I, which alleges that Officer Kevin Davis violated Plaintiff's Fourth Amendment rights by beating and detaining him with no legitimate law enforcement purpose, Compl. ¶ 23; (2) Count II, which alleges that Officers Keith Green, Jonathan Geer, Robert Underwood, and Minh Nyguen violated Plaintiff's Fourth Amendment rights by participating in the detention and search of Plaintiff without probable cause or reasonable suspicion, id. ¶ 24; (3) Count III, which alleges that the District of Columbia violated Plaintiff's Fourth Amendment rights "[b]y maintaining employment, supervision and discipline policies and practices sufficiently lax as to invite and cause the beating of Mr. Shaw, his search and his detention," id. ¶ 25; (4) Count IV, which alleges that Officers Davis, Green, Geer, Underwood, and Nyguen violated Plaintiff's Fifth Amendment right to equal protection under the law by targeting him based solely on his race, id. ¶ 26; and (5) Count VIII, which alleges that the District of Columbia was guilty of "gross negligence" when it permitted Officer Davis to investigate a carjacking involving his mother, Id. ¶ 30.

Following the filing of his Complaint, Plaintiff encountered some difficulty in effectuating service against the MPD officers named as Defendants -- Officers Kevin Davis, Keith Green, Jonathan Geer, Robert Underwood, and Minh Nguyen.*fn1 Following several attempts at service through certified mail and a process server, on October 18, 2005, Plaintiff filed a "Motion to Deem All Individual Defendants Served, and in the Alternative for an Order that Defendant District of Columbia Require Its Police Officer Defendants to Accept Service[,] for an Extension of Time to Effectuate Service, and for an Order Requiring Said Police Officers to Bear the Costs of Service" ("Pl.'s Mot. Re: Service"). Upon consideration of Plaintiff's motion, Defendant District of Columbia's Opposition,*fn2 Plaintiff's Reply, the attached exhibits, and the entire record herein, the Court shall grant-in-part and deny-in-part Plaintiff's motion. Specifically, the Court shall grant Plaintiff's motion to the extent that it requests an extension of time to effectuate service; however, to the extent that Plaintiff's motion seeks other relief, the Court shall deny Plaintiff's motion.*fn3

I: BACKGROUND

Plaintiff Darron Shaw filed this action on June 27, 2005 against the District of Columbia and individual Defendants Kevin Davis, Keith Green, Jonathan Geer, Robert Underwood, and Minh Nguyen -- each of whom is an MPD officer. Plaintiff seeks damages arising out of an incident of alleged police brutality on February 15, 2004. On the day he filed his Complaint, Plaintiff obtained summonses for all Defendants. See Pl.'s Mot. re: Service, Ex. A (Initial Summonses). Plaintiff contends that he then duly served all Defendants by certified mail, return receipt requested. See id. at 2. However, Plaintiff does not indicate when he attempted such service, nor did he attach any return receipts from this service attempt. See id. Ultimately, Plaintiff successfully effectuated service on Defendant the District of Columbia on July 19, 2005, leading to its appearance in this case through the Office of the Attorney General. See 8/29/05 Return of Service/Aff. of Summons and Compl. Executed.

According to Plaintiff, he had no information as to the individual stations to which the individual Defendant/police officers were assigned. See Pl.'s Mot. re: Service at 2. "Mindful of the understandable safety concerns of police officers," Plaintiff also did not attempt to obtain the home addresses of the individual Defendants for purposes of service. Id. Rather, this initial attempt at service "attempted to serve the individual defendants by certified mail addressed to police headquarters," and Plaintiff "anticipated the appropriate forwarding of the summonses by District police authorities to the defendants, so that the lawsuit might proceed without undue difficulty." Id. However, Plaintiff's counsel received nothing in response to this initial service attempt, with the exception that another MPD officer, P. Nyugen, called Plaintiff's counsel to advise him that the service packet intended for Officer Minh Nguyen had been mistakenly forwarded to him. Id. Officer P. Nyugen returned the service packet, and it was re-sent to MPD headquarters c/o Officer Minh Nguyen. Id. No response from the individual Defendants/police officers was forthcoming, though it is unclear based on the record whether they ever received this first attempt at service.

Following this initial attempt, Plaintiff's counsel waited nearly two months to contact counsel for Defendant the District of Columbia in order to request assistance in serving the individual officer Defendants. Id. at 3; see also Defs.' Opp'n at 3. By a letter dated September 12, 2005, the Attorney General's office provided Plaintiff with the station addresses and phone numbers where each individual Defendant was currently assigned, as well as information on the MPD's procedures for facilitating service of process on individual officers. See Pl.'s Mot. re: Service, Ex. B (9/12/05 Letter from Attn'y Gen.'s Office to Pl.'s Counsel). With this information, Plaintiff again attempted to serve the individual Defendant/police officers by certified mail by requesting a waiver of service, focusing this time on the officers' assigned district stations. Plaintiff's counsel added a letter, which explained the situation and sought the officers' cooperation, to the service packet containing the Complaint and necessary forms for acceptance of service. Id., Ex. C (9/15/05 Letter from Pl.'s Counsel to Individual Defs.). Plaintiff's letter offered the individual Defendant/police officers until October 15, 2005 to return the signed waivers of service. Id., Ex. C (9/15/05 Letter from Pl.'s Counsel to Individual Defs.) at 2. This packet did not include a second summons, and was potentially valid as service only if the recipients acknowledged receipt of the Complaint and thereby waived formal service pursuant to Federal Rule of Civil Procedure 4(d). See Pl.'s Mot. re: Service at 3.

Once again, this attempted service proved unsuccessful. While Plaintiff claims that Officers Green, Geer, and Davis received this service packet by signing return receipts, id. at 3, a review of the return receipts indicates that two of the signatures are utterly illegible (the Green and Davis return receipts), while the other return receipt contains a signatures of another officer unrelated to this case (named Timothy Hennigan), not the intended officer (Geer). Id., Ex. D (Return Receipts from Pl.'s Second Attempt). The other two service packets went "unclaimed," and were returned to Plaintiff's counsel (the Underwood and Nguyen packets). Id., Ex. E (Certified Mail Packets Stamped "Unclaimed").

With the 120 deadline under Federal Rule of Civil Procedure 4(m) due in late October 2005, Plaintiff's counsel attempted another service tactic in early October, despite the fact that his September 15, 2005 letter to the officers gave them until October 15, 2005 to waive service. See Pl.'s Mot. re: Service at 3. Plaintiff obtained appropriate alias summonses naming each individual Defendant at his station, and retained a process server to attempt to effect personal service, beginning October 7, 2005. Id., Ex. F (Second Set of Summonses). Plaintiff's process server made repeated attempts at serving the individual Defendants/police officers, but was only able to successfully serve Defendant Jonathan Geer (at a cost of $212.50). Id., Ex. G (Alliance Legal Services, Inc. Invoices to Pl.).

With respect to Officer Davis, Plaintiff's process server (1) left a phone message on October 6, 2005 with another officer asking that Officer Davis return Plaintiff's phone call because Officer Davis was out of the office; (2) visited Officer Davis' station on October 7, 2005, but was informed that it was the officer's day off; (3) visited Officer Davis' station on October 11, 2005, but was again informed that he was off for the day; and (4) visited Officer Davis' station on October 14, 2005, but was told that Officer Davis was out in the field on assignment. Id., Ex. H (Alliance Legal Services' Documentation re: Service Attempts). With respect to Officer Underwood, Plaintiff's process server (1) left a phone message on October 6, 2005 with another officer asking that Officer Underwood return Plaintiff's phone call; (2) visited Officer Underwood's station on October 7, 2005, but was informed that he was apparently off on sick leave; (3) visited Officer Underwood's station on October 11, 2005, but was informed that Officer Underwood was not due to report to work for several more hours, which was contrary to previous information provided to Plaintiff's process server; and (4) visited Officer Underwood's station on October 14, 2005 but was told that the officer was "out on injury" with an unknown return date. Id. With respect to Officer Nguyen, Plaintiff's process server (1) left a phone message on October 6, 2005 with another officer asking that Officer Nguyen return Plaintiff's phone call; (2) visited Officer Nguyen's station on October 7, 2005, was informed that the officer was not in the station, and was told Officer Nguyen's typical days off; (3) visited Officer Nguyen's station on October 11, 2005, was informed that the officer would be in at 2:00 p.m., and waited until 2:05 p.m. for the officer, who did not appear; (4) visited Officer Nguyen's station on October 12, 2005, and was told that the officer was not in that day; and (5) visited Officer Nguyen's station on October 14, 2005, waited for thirty minutes while the desk sergeant looked for the officer, and was then informed that he had already left the station. Id. Finally, with respect to Officer Green, Plaintiff's process server (1) spoke with another officer about Officer Green on October 6, 2005, and was told that Officer Green would be in on October 7, 2005 from 1:00 p.m. to 2:00 p.m. "unless a car was stolen which required his attention"; (2) visited Officer Green's station on October 7, 2005 and was informed that he was not present; (3) visited Officer Green's station on October 11, 2005 and was told that the officer was off for the day; (4) visited Officer Green's station on October 12, 2005 and, after other officers searched the premises, was told that he was not present; and (5) visited Officer Green's station on October 14, 2005, was told that the officer was present, waited thirty minutes, and was then informed that he was not in the station. Id. Including the cost of attempting to serve Officer Geer, Plaintiff spent $1,067.50 attempting to serve the individual Defendants/police officers through his process server. Id., Ex. G (Alliance Legal Services, Inc. Invoices to Pl.).

Following these efforts, Plaintiff's counsel sent an email to Defendant the District of Columbia's counsel on October 12, 2005. See Pl.'s Mot. re: Service, Ex. I (10/12/05 E-Mail from Pl.'s Counsel to Def. Dist. of Columbia's Counsel). In this email, Plaintiff's counsel contended that the officers were obstructing service but provided no details to support this contention, nor did he provide any information about the process server's attempts. Id. at 1. Plaintiff's counsel requested "that the District order these officers to make themselves available forthwith for efficient service of process, and provide me with clear direction as to how this may be accomplished forthwith." Id. At the request of the counsel for Defendant the District of Columbia, Plaintiff's counsel provided more information from his process server in an email dated October 14, 2005. See Pl.'s Mot. re: Service, Ex. J (First 10/14/05 E-Mail from Pl.'s Counsel to Def. Dist. of Columbia's Counsel). In this letter, Plaintiff's counsel represented that he would seek relief from the Court were service not to be guaranteed forthwith. Id. at 1. In another email on this same day, Plaintiff's counsel informed counsel for Defendant District of Columbia that he would wait until Wednesday, October 19, 2005 to allow the District of Columbia to formulate a response; after that date, Plaintiff's counsel pledged that he would file a motion with the Court. See Pl.'s Mot. re: Service, Ex. K (Second 10/14/05 EMail from Pl.'s Counsel to Def. Dist. of Columbia's Counsel).

However, prior to the October 19, 2005 deadline, Plaintiff filed with this Court a "Motion to Deem All Individual Defendants Served, and in the Alternative for an Order that Defendant District of Columbia Require Its Police Officer Defendants to Accept Service[,] for an Extension of Time to Effectuate Service, and for an Order Requiring Said Police Officers to Bear the Costs of Service." This pre-deadline motion came as a surprise to counsel for Defendant District of Columbia, as he was in the process of consulting with his supervisor and formulating a response during this time. See Defs.' Opp'n at 4. Following Plaintiff's motion, but prior to Defendants' Opposition on November 1, 2005, a separate Assistant Attorney General was assigned to represent the individual Defendants/police officers and was provided authorizations to accept service on their behalf. Id. at 5. Following this assignment, Defendants Keith Green, Robert Underwood, and Minh Nguyen were each successfully served, and each entered a separate Answer to Plaintiff's Complaint on November 17, 2005. In contrast to these Defendants, Officer Davis -- the officer central to Plaintiff's Complaint -- was not successfully served; rather, according to Defendants' Opposition, "[t]he District still requires additional time to seek through assigned counsel authorization or some other alternative accommodation for service on Officer Davis." Id. As of this date, Officer Davis has not been successfully served, although another summonses was issued to Plaintiff for Officer Davis on May 4, 2006.

II: DISCUSSION

Given the events leading up to and immediately following Plaintiff's October 18, 2005 motion, "Defendants Geer, Green, Underwood and Nguyen have now been served, and the court need take no further action with regard to securing their proper service." Pl.'s Reply at 2. As such, to the extent that Plaintiff's motion seeks "to Deem All Individual Defendants Served, and in the Alternative for an Order that Defendant District of Columbia Require Its Police Officer Defendants to Accept Service," Plaintiff's motion must be denied as moot with respect to these four individual Defendants/police officers. However, three issues remain outstanding for the Court's resolution: (1) Plaintiff's motion to deem Defendant Kevin Davis served, despite the fact that service of process has not yet been ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.