The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Liyah Kaprice Brown is a Public Defender in the D.C. Superior Court. During a hearing in Superior Court, the judge became irate and ordered security to take Ms. Brown into custody. Plaintiff sues former U.S. Marshals Service Detention Security Officer ("DSO") Hilda Short, who conducted a partial strip search of Ms. Brown when she took Ms. Brown into custody. During this search, DSO Short allegedly bared Ms. Brown's breasts in sight of a male officer and prisoners in the nearby holding cells. Plaintiff argues that this search violated her Fourth Amendment right to be free from unreasonable searches and seeks monetary damages pursuant to 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). DSO Short*fn1 has filed a motion to dismiss, arguing that she was not acting under color of state law so that Plaintiff's claim under 42 U.S.C. § 1983 fails as a matter of law, and that she is entitled to qualified immunity, shielding her from Plaintiff's Bivens claim. Mot. to Dismiss [Dkt. # 25]. The motion will be granted in part and denied in part as follows: The Section 1983 claim will be dismissed, but Plaintiff will be permitted to proceed on her constitutional claim under Bivens. Further, DSO Short's motion to dismiss based on qualified immunity will be denied.
Ms. Brown is a Public Defender who was taken into custody on August 29, 2007 at the direction of District of Columbia Superior Court Judge John H. Bayly, Jr.*fn2 Ms. Brown has been an attorney with the Public Defender Service for the District of Columbia since 2005. She appears regularly before judges of the Superior Court.
The United States Marshals Service ("USMS") maintains a cellblock in the lower levels of the D.C. Superior Court to hold detainees who will appear in the Superior Court or who are taken into custody in the courthouse. In response to Judge Bayly's order, employees of the USMS took Ms. Brown into custody. They searched her when she entered the cellblock and then placed her in a holding cell. This lawsuit arises from that search, which Plaintiff contends was conducted in a manner that violated her Fourth Amendment right to be free of unreasonable searches.
Plaintiff alleges that DSO Short subjected her to a "pat-down" search and a partial strip search in the presence of a male USMS Deputy Marshal. Third Am. Compl. ¶¶ 20-22. Both of the searches took place against the wall across from the holding cells. Id. ¶ 21. DSO Short performed the pat-down while Ms. Brown had her back to the wall. Id. ¶ 22. Ms. Brown cooperated and nothing inappropriate was found; she had passed through a metal detector before entering the courthouse and was actively appearing in court as an attorney at the time the court ordered that she be taken into custody. Id. ¶¶ 2, 23. DSO Short then required Ms. Brown to face the wall for a second search. Id. ¶ 25. During the second search, DSO Short allegedly "raised Brown's suit jacket and her shirt so that Brown's bare skin was exposed." Id. "DSO Short then pulled Brown's bra away from her breasts and above her shoulders, fully exposing Brown's breasts." Id. During the search, DSO Short allegedly touched Ms. Brown's breasts. Id. ¶¶ 25, 44.*fn3 The male Deputy Marshal was standing next to DSO Short during both of these searches. Id. ¶ 20. Both the male Deputy Marshal and DSO Short allegedly had a full view of Ms. Brown's breasts when DSO Short exposed them. Id. ¶¶ 25-26. Although Ms. Brown had her back to the male and female holding cells during the second search, she alleges that her breasts were visible from at least certain positions in both of those holding cells. Id. ¶ 26. An individual in the male holding cell jeered and made catcalls regarding Ms. Brown's body. Id. ¶ 27.
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. Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must be sufficient to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted) (omission in original). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth in a complaint. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When 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." Id. at 1950.
To prevail in a civil rights action under 42 U.S.C. § 1983, a plaintiff must plead and prove that the defendant, acting under color of state or D.C. law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). Section 1983 states, in relevant part: Every person who, under color of any statue, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress. . . .
42 U.S.C. § 1983. A defendant will be found to have acted under color of state law if their alleged illegal action was an exercise of power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West, 487 U.S. at 49 (internal quotation marks omitted). This inquiry focuses on "whether [the] defendant [is a] state official or ha[s] conspired with state officials in committing the alleged illegal acts" and also considers whether the defendant's acts can "be fairly treated as th[ose] of" the District of Columbia, whether the District of Columbia exercised "coercive power" through the defendant, and whether "D.C. officials . . . provide[d] significant encouragement" or "otherwise participated" in the alleged illegal acts.
Williams v. United States, 396 F.3d 412, 414-15 (D.C. Cir. 2005). In Williams v. United States, the D.C. Circuit found that a Government Printing Office special policeman's arrest of the plaintiff for an alleged violation of D.C. law could not be called D.C. action. Because the policeman was a federal official, "[o]nly the federal government gave him the power to make arrests for violations of D.C. law;" therefore, the District of Columbia had "no authority over him" and D.C. officials did not participate or encourage the arrest. Id. at 415.
Section 1983 does not apply to federal officers acting under color of federal law. See District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973); Settles v. United States Parole Comm'n, 429 F.3d 1098, 1104 (D.C. Cir. 2005); see also McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980) (noting that ...