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Epps v. Howes

July 31, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Larry D. Epps pled guilty to second degree murder in criminal action No. F9286B in the Superior Court of the District of Columbia in 1989. He filed this lawsuit on April 17, 2006, claiming that: former Assistant United States Attorney ("AUSA") Paul G. Howes violated his civil rights in various respects; the United States negligently hired and trained Mr. Howes and failed to provide necessary medical treatment to Mr. Epps; and the United States Parole Commission ("Parole Commission") violated his rights by denying parole and then paroling him with a condition of parole for life. See generally Compl. at 5-9. The Federal Defendants filed a motion to dismiss rather than an answer.*fn1 Because the motion correctly argues that Mr. Howes and the Attorney General have absolute immunity against Mr. Epps's allegations and that the remaining Federal

Defendants are protected by sovereign immunity, the complaint will be dismissed pursuant to Federal 12(b)(6) for failure to state a claim on which relief may be granted and Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.


Mr. Epps alleges that in 1988 the U.S. Attorney's Office in Washington, D.C., acting through former AUSA Howes, indicted him for first degree murder. Compl. at 2. He alleges that AUSA Howes threatened to indict him for a second murder as well, even though the AUSA had information that indicated someone else was guilty of the second murder. See Compl. at 4. The threat, according to Mr. Epps, was sufficient that he eventually capitulated and pled guilty to second degree murder although he had a defense of self defense. Id. Further, Mr. Epps charges that AUSA Howes: negotiated a plea bargain outside the presence of Mr. Epps's lawyer; initiated the ejection of Mr. Epps from a drug treatment program in Colorado; caused Mr. Epps to lose his liberty; misrepresented critical facts to the Court during his probation revocation hearing; and caused Plaintiff's counsel to be ineffective. Compl. at 5-7. The Parole Commission is alleged to have improperly rubber-stamped the D.C. Parole Board's denial of his parole request in September 2002, and, when it did parole him, improperly imposed parole for life. See Compl. at 8-9. Although the United States is not a named defendant, Mr. Epps charges it with negligence in its hiring and training of Mr. Howes. Compl. at 6. He also alleges cruel and unusual punishment in violation of the Eighth Amendment for failure to provide medical treatment at some point in his incarceration; no specific person(s) or location(s) are named as responsible for this violation. Compl. at 7.

Mr. Epps seeks $5 million in compensatory damages and $20 million in punitive damages. Compl. at 9.


a. Dismissal for Lack of Subject Matter Jurisdiction

Under Rule 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction*fn2 , a plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).In resolving a motion to dismiss, the Court must construe the factual allegations in the complaint in the light most favorable to plaintiff, but need not accept the legal conclusions or allegations without factual support in the allegations made. See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).The Court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

b. Dismissal for Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.*fn3 Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitl[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The court must treat the complaint's factual allegations - including mixed question of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). The facts alleged "must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965. In deciding a 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d at 196 (D.D.C. 2002) (citation omitted).


The defenses applicable to each named Defendant will be ...

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