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Ye v. Holder

August 13, 2009


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


Petitioner Ning Ye, an attorney proceeding pro se, has sued Attorney General Eric H. Holder, Jr., U.S. Marshal Richard Laskowski, Courtroom Deputy Carol Votteler, several unknown employees of this Court and the U.S. Department of Justice ("DOJ") ("the federal defendants"), and Maria Amato, general counsel for the District of Columbia Department of Corrections ("DOC"), for various torts and violations of his civil rights pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986; 18 U.S.C. §§ 241 and 242; and 28 U.S.C. § 1443. Plaintiff subsequently moved for default judgment against the federal defendants. The federal defendants have opposed that motion and have also moved to dismiss the case for insufficient service pursuant to Federal Rule of Civil Procedure 12(b)(5). Defendant Amato has moved to dismiss the claims against her pursuant to Rule 12(b)(6). For the reasons set forth below, plaintiff's motion for default will be denied and Amato's motion will be granted in part. The federal defendants' motion will be granted in part but plaintiff will be given twenty (20) days to serve a copy of the summons and complaint upon the U.S. Attorney for the District of Columbia in accordance with Rule 4(i)(1)(A).


According to the complaint, plaintiff previously represented criminal defendant Zhenli Ye Gon before Judge Emmet Sullivan in the case of United States v. Gon, No. 07-CR-181 (D.D.C.). (See Compl. at 2.) See also Minute Order, Gon, No. 07-CR-181(D.D.C. May 7, 2008) (terminating plaintiff as Gon's counsel). Ye Gon was confined as an inmate at the District of Columbia Jail, run by the DOC, when plaintiff visited him there on February 18, 2008. (See Compl. 2, 4-5.) At that time, officials found chocolate candy in Ye Gon's possession after he had met with plaintiff; DOC officials concluded that plaintiff had impermissibly given the candy to Ye Gon. (Id. at 5.) The Court subsequently gave plaintiff a "stern warning" about the incident during a February 27 status conference in the Gon case. (Id.)

During a March 18 status conference in Gon, the Court considered questions surrounding the plaintiff's compliance with the requirements for admission to practice before this Court. (See Compl., Ex. 9 (1st Excerpt of Mar. 18, 2008 Hr'g Tr.).) The Court stated that plaintiff was not allowed to participate in the case until he was able to clarify his bar membership status. (See id.)

The Court instructed plaintiff that he could "participate at counsel['s] table," but that he was not to "stand up" or address the Court. (See Compl., Ex. 10 (2nd Excerpt of Mar. 18, 2008 Hr'g Tr.).) Plaintiff alleges that during a break in the proceedings, after all defense counsel had left the courtroom, defendant Votteler took something from plaintiff's bag, which he suspects were two computer data storage devices. (Compl. at 6-7.) After the status conference resumed, plaintiff began to address the Court (id. at 8), leading the Court to admonish plaintiff several times more that he was not to move (id.), that he must "be quiet," and that he would be removed from the courtroom "[t]he next time [he] stand[s] up . . . ." (Compl., Ex. 10.) Despite those instructions, plaintiff proceeded to reach into his bag, at which point the Court instructed the Marshals to escort the plaintiff out of the courtroom. (See Compl. at 8-9.) In the vestibule and area outside the courtroom, one of the Marshals allegedly knocked off plaintiff's eyeglasses, at which point plaintiff moved to retrieve his glasses. (Id. at 9.) According to plaintiff, the Marshals, including defendant Laskowski, then began to beat, kick, and choke plaintiff for "20 to 30 minutes" of "torture fueled by clueless hatred," after which they handcuffed plaintiff and restrained him in a cell for two hours. (Id. at 9-10 (emphasis in original).) Several months later, on October 23, a grand jury returned an indictment that charged plaintiff with assaulting, resisting, or impeding two U.S. Marshals in the performance of their official duties during the March 18 altercation. See Indictment, United States v. Ye, No. 08-CR-324 (D.D.C. filed Oct. 23, 2008). That same day, the DOJ issued a press release announcing the indictment and its allegations that plaintiff "inflicted bodily injury" on one of the Marshals and physically contacted another during the course of the altercation. (See Compl., Ex. 20.)

Plaintiff filed this action on January 16, 2009. The complaint contains ten counts: (1) assault and battery, (2) discrimination on the basis of race or national origin, (3) false arrest and false imprisonment, (4) malicious prosecution, (5) intentional infliction of emotional distress, (6) trespass to chattels and conversion, (7) defamation, (8) civil fraud, (9) civil conspiracy, and (10) negligent supervision. (Compl. at 13-19.) Defendant Amato moved to dismiss the counts against her on April 29. [Dkt. 3.] On May 27, the Court ordered plaintiff to file proof that he had served the federal defendants. (See Order [Dkt. 6] at 1.) On June 2, plaintiff filed a personal affidavit and affidavits by the process servers. [Dkt. 8-10.] On June 5, plaintiff moved for an entry of default judgment against the federal defendants. [Dkt. 11.] On June 15, the federal defendants opposed the motion for default judgment and moved to dismiss the counts against them on the grounds of insufficient service. [Dkt. 17.]



A. Motion to Dismiss for Insufficient Service of Process

"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). "If the plaintiff does not properly effect service on a defendant, then the defendant may move to dismiss the complaint" pursuant to Federal Rule of Civil Procedure 12(b)(5). Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C.2003). Upon such a motion, "'[t]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of [Federal] Rule [of Civil Procedure] 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting C. Wright & A. Miller, Federal Practice and Procedure § 1083 at 334 (1969)); accord Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 186 (D.D.C. 2008). Although "[p]ro se litigants are allowed more latitude than litigants represented by counsel to correct defects in service of process and pleadings," Moore v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993), "this consideration does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure," Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987), nor is it of much consolation to plaintiff, since he is a practicing attorney.

B. Motion to Dismiss for Failure to State a Claim

"In determining whether a complaint fails to state a claim, [courts] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [courts] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts may employ a "two-pronged approach." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). Generally, "'a judge must accept as true all of the factual allegations contained in the complaint.'" Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)) (edits omitted). However, courts "can choose to begin [considering a motion under Rule 12(b)(6)] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 129 S.Ct. at 1950. Courts need not accept as true "'naked assertion[s]' devoid of 'further factual enhancement,'" id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)), or "legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In other words, a pleading must offer more than "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action' . . . ." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

Next, once it has been determined that "there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. This means that a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted ...

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