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Rogers v. Johnson-Norman

December 20, 2006


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


This case is the latest chapter in a lengthy saga of alleged harassment and related litigation involving plaintiff Virgil Rogers and defendant Karen Johnson-Norman. Plaintiff's pro se amended complaint advances eight claims. Count I alleges that defendant unlawfully accessed plaintiff's consumer credit report in violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. (2006). The crux of Counts II--VIII is plaintiff's allegation that, on various occasions, defendant falsely accused him of stalking and harassment. Defendant moves for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated herein, defendant's motion will be granted in part but denied as to Count I.*fn1


For a period between 1998 and 2000, the parties had a romantic relationship. (Am. Cmpl. ¶ 7.) On multiple occasions after the relationship ended, defendant informed law enforcement authorities that she had experienced unwanted contact from plaintiff. (See e.g., id. ¶¶ 12, 18, 20, 21.) Defendant's reports resulted in a series of criminal and civil proceedings against plaintiff, in response to which plaintiff on one previous occasion brought a civil suit against defendant.*fn2 (See e.g., id. ¶¶ 9, 12--13, 17, 26--33, 38--41.) For present purposes, it suffices to recite only highlights of the parties' tortured litigation history.*fn3

I. Criminal Proceedings

In March 2001, plaintiff was convicted in D.C. Superior Court of attempted stalking. (Def.'s Ex. B ["CPO Appellate Op."] at 1 n.1, available at 2005 WL 2428340; Def.'s Ex. E ["CPO Transcript"] at 13.) For his offense, plaintiff was placed on probation and "ordered[,] as a condition of probation, to have no contact with [defendant] of any kind." (Id.) Plaintiff's conviction was affirmed by the D.C. Court of Appeals. (CPO Appellate Op. at 1 n.1.)

In 2003, plaintiff was again charged with stalking defendant. (Id.) This time, however, a jury acquitted him. (Id.)

II. CPO Proceeding

Immediately after plaintiff's 2003 criminal trial, Judge Lynn Leibovitz, who had presided over that trial, held a hearing on defendant's request for a civil protection order ("CPO"). (See id.) Defendant contended that on a number of occasions in 2002 and 2003 plaintiff had telephoned her and sent her anonymous letters in violation of the existing "stay-away" order. (See, e.g.,Def.'s Ex. A ["CPO Op."] at 3 (referencing defendant's allegations that she had been the victim of the unwanted contacts and "was extremely distressed by them").) Plaintiff denied the alleged conduct. (See, e.g., CPO Transcriptat 14 (explaining that, at the criminal trial, defendant denied having sent the letters).)

Judge Leibovitz began the hearing by listing the evidence under consideration, which included various letters, envelopes, and emails that the government had introduced in plaintiff's criminal trial; evidence that plaintiff's fingerprints matched fingerprints on one of the letters that defendant had received in January 2003; an exhibit on which plaintiff had designated those portions of the January 2003 letter that he recognized as his own language; and a stipulation acknowledging the existing stay-away order. (See id. at 2--10.)In addition, Judge Leibovitz considered defendant's and plaintiff's testimony from the criminal trial. (See id. at 10, 14.)

Applying the "preponderance of evidence" standard, Judge Leibovitz determined that plaintiff had indeed committed the alleged acts of harassment. (Id. at 11--18.) In fact, she found "by a far greater standard[] than preponderance" that plaintiff had sent the anonymous letters. (Id. at 15; see id. at 18 (stating that the letters "entirely disclose[d] themselves as letters sent by [plaintiff]").) She further found that the letters were "obsessive," and that plaintiff had "acted intentionally, willfully and with malice" in a successful "effort to cause emotional distress to defendant." (Id.) Accordingly, Judge Leibovitz concluded:

I . . . find that there is a preponderance of evidence and that there is good cause to believe that between June 2002 and May 2003 . . . [defendant] committed the offense of stalking, particularly harassment, by writing letters and making the phone calls and having the other contacts that he did.

And . . . I further find that there is good cause to believe [plaintiff] poses a danger to [defendant].


On such findings, Judge Leibovitz entered a CPO against plaintiff. (Id. at 19.) The CPO provided that, for a period of one year from October 29, 2003, plaintiff was prohibited from going within one hundred yards of defendant, her husband, her children, her parents, her siblings, her home, her workplace, or her church. (Id.)In addition, plaintiff was prohibited from contacting defendant or her family members in any manner, and from possessing, purchasing, receiving, or selling any firearm or ammunition. (Id.)Finally, he was ordered to undergo a mental health evaluation and an alcohol and drug screening through the Court Services and Offender Supervision Agency ("CSOSA"). (Id. at 23.)

IV. Plaintiff's Motion to Alter or Amend and for Reconsideration of the CPO

Plaintiff contested the validity of the CPO in a letter to Judge Leibovitz dated November 26, 2003. (See CPO Op. at 1.) In the letter, plaintiff claimed that "(1) [the] 'not guilty' verdict in [the] prior criminal matter precluded the court from making its findings in [the CPO] case, (2) the CPO violate[d] his Second Amendment right to bear arms, and (3) the court unreasonably ordered [the psychiatric and substance abuse] evaluations." (Id. at 4.)

Judge Leibovitz treated plaintiff's letter as a motion to alter or amend judgment and for reconsideration. (Id. at 1.) As a threshold matter, the motion was untimely. (Id. at 4.) Nonetheless, Judge Leibovitz went on to reject plaintiff's arguments. First, plaintiff's acquittal in the criminal case did not foreclose the CPO because the jury's application of the reasonable doubt standard to acquit plaintiff "did not preclude the court from finding 'good cause to believe' that [plaintiff] had stalked [defendant]." (Id.) Second, because the CPO merely provided notice of a federal statute restricting the sale and possession of firearms, there was no Second Amendment violation. (Id. at 4--5.) Finally, the CPO's requirement that plaintiff undergo psychiatric and substance abuse evaluations, plus any appropriate treatment, was expressly authorized by D.C. law. (Id. at 5.)

V. Plaintiff's Appeal from the CPO

After Judge Leibovitz declined to alter, amend, or reconsider the CPO, plaintiff appealed to the D.C. Court of Appeals.(CPO Appellate Op. at 1.)In addition to his previous claims, plaintiff asserted that the D.C. Superior Court had lacked subject matter jurisdiction over the CPO, that the CPO proceedings had been unfair because he was never given the opportunity to cross-examine defendant, that there was not "good cause to believe" he had committed an intrafamily offense, that the CPO was invalid because it had an extraterritorial effect, and that the CPO violated his First Amendment rights. (Id. at 1--3.)

The D.C. Court of Appeals rejected all of plaintiff's arguments. The D.C. Superior Court had properly exercised subject matter jurisdiction over the CPO because defendant had "unequivocally alleged that 'the underlying intrafamily offense . . . occurred in the District of Columbia.'" (Id. at 1 (quoting D.C. Code § 16-1001(5) (2001)).)Plaintiff's criminal acquittal did not bar entry of the CPO because "acquittal in a criminal case, in which guilt must be proved beyond a reasonable doubt, does not preclude relitigation of the same factual issues when they are subsequently presented in a civil proceeding governed by a less exacting standard of proof." (Id. at 2.) There was no plain error as to plaintiff's procedural objections to the CPO proceedings given that, because defendant had not testified, plaintiff had not been deprived of his right to cross-examination.*fn4 (Id.) Plaintiff's claim "that there was not 'good cause to believe' that he [had] committed an intrafamily offense" failed because he had not demonstrated that Judge Leibovitz's findings were clearly erroneous. (Id.) Plaintiff's CPO was valid notwithstanding its extraterritorial effect because the D.C. Superior Court had "jurisdiction over the subject matter and [over plaintiff]." (Id.) Because "the Second Amendment guarantees a collective rather than an individual right," the CPO did not deny plaintiff his right to bear arms. (Id.(quoting Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987)).) Similarly, ordering plaintiff to stay away from the defendant's church did not deprive plaintiff of his First Amendment right to the free exercise of religion. (Id.) Finally, "in light of the broad remedial purposes of the [District of Columbia's] intrafamily offense statute . . . the other provisions of the CPO challenged by [plaintiff] were properly included therein in the exercise of the trial court's broad discretion." (Id. (citation omitted).)

VI. CPO Extension Proceeding

During the pendency of the above appeal, defendant sought an extension of the CPO. (See Def.'s Ex. L ["CPO Extension Transcript"] at 1.)Judge Robert Rigsby of the D.C. Superior Court conducted a CPO extension hearing on October 28, 2004. (Id.) Plaintiff did not appear at the hearing, and the record reflects that Judge Rigsby devoted considerable attention to determining whether plaintiff had been properly served. (See id. at 2--13.)Defendant's counsel explained that, because they did not know where plaintiff lived, they had served him with copies of the hearing notice, the CPO, and the extension motion by both mail (to a post office box) and fax. (Id. at 2, 4, 11.) Further, counsel represented that plaintiff had agreed by telephone to service by fax, that they had cause to believe that he had received their faxed materials, and that he had previously expressed an intention not to attend the CPO extension hearing. (Id. at 3--4, 6, 9--13.) Judge Rigsby credited the representations of counsel, expressly finding that plaintiff "ha[d] been provided reasonable notice and opportunity to be heard." (Id. at 17; accord id. at 19.) Satisfied that plaintiff had been ...

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