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Atherton v. District of Columbia Office of the Mayor

April 5, 2007


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


In this civil rights action filed pro se, plaintiff challenges his removal on April 11, 2001, from a grand jury convened in the Superior Court of the District of Columbia. He names as defendants the District of Columbia Office of the Mayor, the Superior Court Office of the Clerk, Superior Court Clerk Duane Delaney, Director of Special Operations Division Roy Wynn and Jury Officer Suzanne Bailey-Jones (collectively "the D.C. defendants"), as well as the Department of Justice Office of the Attorney General and Assistant United States Attorney ("AUSA") Daniel M. Zachem ("the federal defendants").*fn1

Presently before the Court are the motions to dismiss brought separately on behalf of the District of Columbia, each named individual D.C. defendant and the federal defendants. In addition, plaintiff has pending a motion for default judgment. Because a default has not been entered against any defendant, plaintiff's motion for judgment based on default will be denied.

Upon consideration of the defendants' respective motions, plaintiff's opposition and the entire record, the Court will grant defendants' motions to dismiss and will dismiss the case.


Plaintiff is a resident of the District of Columbia. He alleges that he was sworn to serve as a grand juror beginning April 9, 2001, for 25 days. When plaintiff sought to obtain information not provided to him in "a grand jury instruction book identifying crimes and their elements," he upset "a few grand jurors" because the grand jury "had voted for indicting, albeit without knowing the elements of the charge [thereby necessitating] a new vote . . . once the elements of the charge were known." Compl. ¶¶ 17-20. On April 11, 2001, AUSA Zachem told plaintiff to report to Wynn immediately. Id. ¶ 22. He was then directed to Bailey-Jones' office "where he was summarily permanently dismissed, allegedly because he was disruptive." Id. ¶ 24. Plaintiff was paid for three days of service. Id. ¶ 31. He unsuccessfully sought written reasons for his removal from the grand jury. Id. ¶¶ 25, 28, 31. Plaintiff accuses defendants of fraud (Count 1) and civil rights violations (Count 2).

On April 9, 2004, the Office of the Clerk of this Court received plaintiff's complaint and motion to proceed in forma pauperis. On April 27, 2004, this Court granted plaintiff's motion to proceed in forma pauperis and then sua sponte dismissed the complaint for lack of subject matter jurisdiction. See Order (Apr. 27, 2004). By Order of June 21, 2005, the Court of Appeals for the District of Columbia Circuit reversed and remanded the case to the district court. See Dkt. No. 11 (Mandate) (Aug. 24, 2005). The case was assigned to the undersigned judge on August 4, 2006, and summonses were issued on August 11, 2006. Beginning in September 2006, defendants began to file motions to dismiss and to quash service. Plaintiff has opposed each motion.


The District of Columbia Defendants' Motions to Dismiss The D.C. defendants advance common grounds for dismissal, two of which will be resolved with little discussion.

1. Improper Service of Process

Defendants seek dismissal for improper service of process, asserting that they were not served within 120 days of the filing of the complaint and that the individual defendants sued in their official and individual capacities were not personally served. Plaintiff's appeal of the dismissal order tolled the running of the time for service. In any event, plaintiff's proceeding in forma pauperis places the responsibility of proper service on this court's officers. See 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases."). Accordingly, plaintiff should not and will not be penalized for any deficiencies in service of process.

2. Statute of Limitations

Defendants also seek dismissal on the ground that the complaint is barred by the District of Columbia's three-year statute of limitations. They reasonably base this claim on the date that the complaint was formally filed, April 27, 2004. Plaintiff rightly asserts, however, that the complaint and his application to proceed in forma pauperis were presented to the Clerk's Office on April 9, 2004, as evidenced by the Clerk's received stamp appearing on the back of the original paper complaint located in the Clerk's jacket. The administrative delay between the submission of a complaint and its formal filing after the Court's granting of leave to proceed in forma pauperis is not attributable to the plaintiff. See Washington v. White, 231 F. Supp.2d 71, 75-76 (D.D.C. 2002) (citing cases). The events forming the basis of the complaint occurred on April 11, 2001. Plaintiff's ...

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