The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff, Gregory Harris ("Plaintiff"), brings this action against Defendant, the District of Columbia ("Defendant"), under 42 U.S.C. § 1983 and various common law claims arising from Plaintiff's arrest.
This matter is now before the court on Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot.") [Dkt. No. 17]. Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss is granted.
A. Factual Background*fn1
Parties offer markedly different accounts of the underlying incident. Plaintiff is a duly-commissioned Special Police Officer for the District of Columbia. Compl. ¶ 10 [Dkt. No. 1]. On April 7, 2008, members of the District of Columbia Metropolitan Police Department ("MPD") conducted what Defendant terms an "administrative inspection" and Plaintiff terms a warrantless "raid" at Community Development Institute ("CDI") Head Start School, a daycare center located at 444 16th Street, N.E. in Washington, DC, where Plaintiff was on duty. Pl.'s Opp'n at 1; see U.S. Dep't of Health and Human Servs., Admin. For Children and Families, Community Development Institute Fast Facts, available at http://cditeam.org/cdheadstart/facts/.
The MPD officers were assigned to perform the inspection because the MPD Security Officers Management Branch ("SOMB") received a memorandum from Falken Industries, Plaintiff's employer, "requesting a uniform waiver for a special protective detail to work at CDI head start school," and to allow the Falken employees to carry handguns while on duty there. Affidavit of Sgt. Anthony Moye, Def.'s Mot., Ex. A [Dkt. No. 17-2]. SOMB ordered the inspection after a WALES search showed that none of the listed handguns were on record. Id. Plaintiff believes that he had authorization both to work at the daycare center and to carry a gun, based on his employer's verbal notification to SOMB. Pl.'s Opp'n to Mot. to Dismiss or for Summ. J. at 1-2, 13 ("Pl.'s Opp'n") [Dkt. No. 18].
At the daycare center, the MPD officers observed that Plaintiff's identification badge indicated he was assigned to work at a different location, and that he was not authorized to carry a firearm. Def.'s Mot. at 1-2. The MPD ran a search for Plaintiff's gun, and found no record of registration for it. Id. The officers arrested Plaintiff and seized "numerous items" of the Plaintiff's personal property and Plaintiff's employer's personal property. Compl. ¶ 16.
Defendant states that the officers requested to speak to Plaintiff and another officer in private, that Plaintiff led them to an empty classroom, and that the arrest occurred there. Def.'s Mot. at 1. Harris, however, describes being arrested by twelve officers with weapons drawn, who forced him to the ground in front of the very schoolchildren he was assigned to protect. Pl.'s Opp'n at 2, 24. Parties agree, however, that he then spent the night in jail. At Plaintiff's presentment hearing, he was released on the condition that he not possess a firearm in the District of Columbia. Def.'s Mot., Ex. E [Dkt. 17-5]. Based on the affidavit of Sergeant Anthony Moye, the supervising officer at the arrest, the United States Attorney's Office charged Plaintiff with "Carrying a Pistol Without a License [Outside Home or Place of Business], in violation of 22 D.C. Code § 4504(a) (2001 ed.)." However, after Defendant moved to dismiss the case, charges were dismissed on June 16, 2008.
Plaintiff alleges that, on June 11, 2008, he received a letter from Sgt. Moye revoking his Special Police Commission. Compl. ¶ 28. Plaintiff received another letter, dated July 30, 2008, stating that Plaintiff's Special Police Commission was suspended for twenty days. Id. at ¶ 32.*fn2 The MPD has not returned Plaintiff's personal property.
Plaintiff initiated this suit on April 3, 2009, filing a Complaint that contains the following seven counts: deprivation of liberty under the Fourth Amendment, when Plaintiff was arrested without probable cause during a warrantless search (Count I); deprivation of a property interest, under the Fifth Amendment, when his property was seized and never returned (Count II); malicious prosecution of the Plaintiff initiated by Sgt. Moye (Count III); deprivation of a property interest when he was denied the right to work as a Special Police Officer (Count IV); deprivation of a liberty interest, under the Eighth Amendment (Count V), excessive force employed during the search (Count VI); and intentional infliction of emotional distress (Count VII). Counts I, II, IV, V and VI are brought pursuant to 42 U.S.C. § 1983, and Counts III and VII are brought under the common law of the District of Columbia.
The Clerk entered a default judgment against the Defendant on May 21, 2009, after it failed to respond to the Complaint. [Dkt. No. 5]. Defendant filed a Motion to Set Aside Default on June 5, 2009, to which Plaintiff timely replied and which the Court granted on August 17, 2009. The Court ordered Defendant to file an Answer, which both parties have requested be stayed pending resolution of Defendant's Motion to Dismiss. Consent Mot. to Stay Filing of the Answer [Dkt. No. 30]. Defendant then filed the instant Motion on August 25, 2009. The Motion includes two broad arguments: (1) that all claims brought under § 1983 should be dismissed for failure to show that the District of Columbia is liable for his injuries, and (2) that all common law claims should be dismissed because Plaintiff failed to provide notice of the action to the District of Columbia, as required by local law. Defendant presents separate argument for dismissal of each individual claim. Parties completed briefing of the Motion to Dismiss on September 24, 2009.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ][his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. A complaint will not suffice, however, if it "tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at 557).
Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success . . . must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)(internal quotation marks and citations omitted).
When deciding a 12(b)(6) Motion to Dismiss, "the Court may consider only 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." Brown v. Bureau of Prisons, 498 F. Supp. 2d 298, 301 (D.D.C. 2007); see Marshall v. Honeywell Technology Solutions Inc., 536 F. Supp. 2d 59, 65 (D.D.C. 2008)(stating that "where a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment"); Baker v. Henderson, 150 F. Supp. 2d 13, 15 (D.D.C. 2001).
"If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). "However, if the court renders its decision without reference to the extraneous material, then the motion may still be treated as one for dismissal." American Sharecom, Inc. v. Southern Bell Tel. and Tel. Co., Civ. No. 87-1334, 1989 WL 229397, at *2 (D.D.C. Aug. 28, 1989); see Basel v. Knebel, 551 F.2d 395 (D.C. Cir. 1977). "In other words, it is not the submission, but rather the consideration, of the extraneous documents which renders the motion one for summary judgment." American Sharecom, Inc., 1989 WL 229397 at *2.
Summary judgment is appropriate "when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute over a material fact is genuine if the evidence is such that a reasonable [fact-finder] could return a [decision] for the non-moving party." Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. ...