The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, David Olabayo Olaniyi, alleges that he was subjected to constitutional and common-law violations arising from his arrest in the United States Capitol Building in March of 2003, and from a separate incident involving a vehicle stop in the District of Columbia in January of 2004. See generally Second Amended Complaint ("Am. Compl."); Complaint ("United States Compl.").*fn1 There are several motions currently pending before the Court, including a motion to dismiss filed by the United States, a motion to dismiss or in the alternative for summary judgment filed by the District of Columbia, and a motion to dismiss or in the alternative for summary judgment filed by the thirty-seven individual federal defendants (the "federal defendants"). The plaintiff has filed oppositions to all of these motions. Upon careful consideration of the parties' written submissions,*fn2 the applicable legal authority, and the record in this case, for the reasons set forth below the Court will grant in part and deny in part the United States' motion to dismiss, deny the District of Columbia's motion for summary judgment without prejudice pending further discovery, and grant summary judgment to the individual federal defendants.
The facts that give rise to this case were set forth fully in the Court's prior opinion in this case. See Olaniyi v. District of Columbia, 416 F. Supp. 2d 43, 46-48 (D.D.C. 2006). The Court largely repeats those facts here, updating the internal citations to incorporate the Second Amended Complaint ("Am. Compl."), and providing more detail with respect to the search of the plaintiff's van.
The plaintiff, a native of Nigeria, describes himself as "an artist, philosopher, scholar, performer, and director." Am. Compl. ¶ 3. According to the plaintiff, on March 6, 2003, he and his current wife, Reena Patel Olaniyi, then residents of Michigan, visited the United States Capitol Building to tour and conduct research for the plaintiff's stage play. Id. ¶¶ 3, 65-66. The plaintiff contends that the play "would illustrate to audiences across the United States the way in which objects in one's physical space tend to shade one's views of different experiences." Id. ¶ 3.
In preparation for his visit, the plaintiff constructed and wore a
costume consisting of "various materials from the [District of
Columbia] environment, including newspapers, shampoo bottles, [and]
empty honey jars . . . wrapped in duct tape which was formed into a
harness shape over [the plaintiff's] chest." Id. ¶ 66.*fn4
The plaintiff also carried "a small, hand-carved mask
sculpture," which he had "for entertainment purposes." Id. ¶¶ 67, 70.
He acknowledges that the events took place "[i]n the wake of the
September 11, 2001 terrorist attacks, an atmosphere of heightened
anxiety and concerns over safety and security.in the United States,"
which he contends "created a society filled with over-zealousness and
suspicion," id. ¶ 65, and states that he wore the costume "in an
effort to study people's interactions with him [and] spread a message
of tolerance and understanding during times of war," id. ¶ 66.
Clad in his costume, the plaintiff passed through several security checkpoints, including checkpoints equipped with a magnetometer, x-ray machine, and explosive detectors, before gaining entry into the Capitol Building. See id. ¶ 68. When asked about his costume, the plaintiff "explained to the guards that he was an artist doing research for an upcoming performance." Id. Also, once inside the Capitol Building, the plaintiff "performed for tourists by dancing and singing," and he took photos with them. Id. ¶ 69. The plaintiff also described his stage play "David/Dafidi," and his artistic philosophy as "Life is a Performance." Id.
The plaintiff alleges that while he was in the Crypt area of the Capitol Building, he was approached by Officer Preston Nutwell of the Capitol Police. Id. ¶ 70. Officer Nutwell asked what the plaintiff was holding, and the plaintiff identified the object as a hand-carved mask sculpture. Id. After instructing the plaintiff to drop the object, Officer Nutwell allegedly "grabbed the piece and shattered it on the ground." Id. The plaintiff was then handcuffed. Id. ¶71.*fn5
After the plaintiff was handcuffed, "[t]hirty to forty more" officers, including members of the Capitol Police Hazardous Device Unit, the Federal Bureau of Investigation's ("FBI") Joint Terrorism Task Force, and Detective Joseph DePalma, arrived in the Crypt area of the Capitol Building. Id. When asked if there were wires or explosives in his costume, the plaintiff responded in the negative, stating that he was wearing the costume for artistic purposes. Id. The plaintiff's costume was then cut from his body and x-rayed. Id. It was determined that the plaintiff was unarmed, and preliminary testing conducted on the costume was negative for explosives, chemical agents, and radiation.*fn6 Id.; see Fed. Defs.' Mem., Exhibit ("Ex.") 2 (Declaration ("Decl.") of Robert Meikrantz) at 11-12. The plaintiff remained in custody in the Capitol Building for almost ninety minutes before being arrested. Am. Compl. ¶ 72. He contends that he was then taken to the Capitol Hill Police Processing Center and interrogated without being provided access to an attorney. Id.
In a post-arrest search of the plaintiff's person, the officers discovered a set of car keys, which the plaintiff explained were for the use of his vehicle, a black 2002 GMC Savanna van.
Id. ¶ 73. The police subsequently located the van in the 300 block of 3rd Street, NE, approximately four blocks from the Capitol Building. Id.; Olaniyi, 416 F. Supp. 2d at 47. According to the federal defendants, because the plaintiff's costume resembled a vest associated with suicide bombers, there was concern that there may be explosives inside the van or that the plaintiff may have been engaging in a "Dry Run" to test security or observe response procedures and capabilities at the Capitol Building. See Fed. Defs.' Mem., Ex. 2 (Decl. of Daniel Malloy) at 9-10; id., Ex. 2 (Decl. of Gillman G. Udell) ("Udell Decl.") at 14-15. Neighbors and restaurant employees had reportedly told the officers that the van had expired out-of-state license plates, had been parked in the same location for several days, and that several individuals appeared to be living inside the vehicle. Id., Ex. 2 (Decl. of John King) ("King Decl.") at 6-8; id., Ex. 2 (Decl. of Daniel Malloy) at 9-10.*fn7
A canine search of the van's exterior did not reveal any traces of explosives, Am. Compl.
¶ 73, but while conducting the search the Capitol Police canine officers observed large containers in the rear of the van covered by blankets and clothing, Fed. Defs.' Mem., Ex. 2 (King Decl.) at 7; id., Ex. 2 (Decl. of John Dineen) at 4-5.*fn8 Around this same time, Gillman Udell, a Commander of the Hazardous Incident Response Division of the Capitol Police, id., Ex. 2 (Udell Decl.) at 14, ordered that the entire block where the van was parked be cleared of vehicular and pedestrian traffic, and neighbors were told to go to the backside of their homes and seek cover until someone knocked on their doors. Id., Ex. 2 (King. Decl.) at 7; id., Ex. 2 (Decl. of Donald Bracci) ("Bracci Decl.") at 1-3. Captain Udell also gave clearance to bomb technicians John King and Donald Bracci to perform a diagnostic inspection of the van's exterior and interior to determine if the vehicle contained explosives or other hazardous materials. See id., Ex. 2 (Bracci Decl.) at 2; id., Ex. 2 (King Decl.) at 7.
During their inspection of the van's exterior, agents King and Bracci confirmed that several large containers were present in the back of the van and also noticed three large unmarked glass jars containing an unknown liquid located between the van's front seats. Id., Ex. 2 (Bracci Decl.) at 2; id., Ex. 2 (King Decl.) at 7. The bottom portions of the glass jars, however, could not be seen by agents King and Bracci from their vantage points. Id., Ex. 2 (King. Decl.) at 7. After donning protective equipment to safeguard themselves from exposure to any hazardous chemicals, agents King and Bracci entered the van. Id., Ex. 2 (Bracci Decl.) at 2. The containers were examined as if they contained potential explosive, chemical, or incendiary hazards, and agents King and Bracci handled the items in the van with proper care. Id., Ex. 2 (Bracci Decl.) at 3; id., Ex. 2 (King Decl.) at 8. They determined that the containers had no wires attached to them, and that the liquid inside the containers was urine. Fed. Defs.' Mem., Ex. 4 (Decl. of Kevin D. Finnerty) ("Finnerty Decl.") at 1-4 ¶ 5. The containers were then packed in HAZMAT-approved containers and left inside the van. See id., Ex. 2 (Bracci Decl.) at 3.
After the search of the van, FBI Special Agents Doug Edmonson and Kevin Finnerty discussed the incident with members of the Capitol Police. See Fed. Defs.' Mem., Ex. 3 (Decl. of Douglas R. Edmonson) ("Edmonson Decl.") at 7-9 ¶ 3; id., Ex. 4 (Finnerty Decl.) ¶ 6. These officials were concerned that the plaintiff "might have been intentionally probing security at the Capitol [Building] in advance of an actual attack, or may have been [an] unwitting 'pats[y]' being used by terrorists to probe security at the Capitol," and that the van would contain evidence in this regard. Id., Ex. 4 (Finnerty Decl.) ¶ 6. Both agents also noted that because "Mr. Olaniyi and Ms. Patel had been arrested, [they] did not want to leave [the] van on the street and run the risk that it would be vandalized, stolen, [or] towed because of a parking violation, or perhaps driven away by an unknown third party involved in the incident." Id.; see also id., Ex. 3 (Edmonson Decl.) ¶ 3. In consultation with a supervisor at the FBI's Washington Field Office, agents Finnerty and Edmonson ordered that the van be impounded and towed to an FBI storage facility. Id., Ex. 4 (Finnerty Decl.) ¶ 6; id., Ex. 3 (Edmonson Decl.) ¶ 3. Agent Finnerty then requested that an inventory search of the van be conducted. Id., Ex. 4 (Finnerty Decl.) ¶ 6. Analysis of the liquids retrieved from the van during the inventory search determined that they were non-hazardous. See Fed. Defs.' Mem., Ex. 3 (Decl. of Melissa R. Godbold) at 20-23 ¶ 2. The plaintiff alleges that the conduct of the Capitol Police and FBI resulted in the destruction of "numerous pieces of original artwork" that were inside the van. Am. Compl. ¶ 73.
Following his arrest, the plaintiff was detained overnight in a holding cell and, after a clinician assessment indicated that he had "delusions of grandeur," id. ¶¶ 74-75, was later transferred to the Mental Health Unit of the District of Columbia Jail (the "Mental Health Unit"), where he remained for approximately three nights, id. ¶¶ 74-77. During his stay in the Mental Health Unit, clinicians informed the plaintiff that, according to test results, he was diabetic and that they would administer medication to treat the condition. Id. The plaintiff denied having diabetes and refused the medication, but claims that "he was told 'you can either cooperate or be physically restrained while we inject you,'" at which point he purports to have cooperated with the clinicians while under duress. Id. The plaintiff alleges that he was then "forcibly administered a medication which caused him to lose consciousness until the following morning." Id. He believes the "medication was an antipsychotic drug because it caused [him] to lose consciousness for several hours and . . . was administered through a shot into [his] upper arm rather than a typical finger prick for diabetes testing." Id. Records the plaintiff later obtained from the Mental Health Unit "indicate that [he] was 'cooperative' and 'consistent,' and that he had no history of diabetes." Id.
On March 10, 2003, after his release from the Mental Health Unit, the plaintiff and Ms. Patel were charged in this Court with (1) demonstrating in the Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G) (2006);*fn9 (2) making a false bomb threat in violation of 18 U.S.C. § 844(e) (2006); (3) aiding and abetting in violation of 18 U.S.C. § 2 (2006); and (4) assault or threatened assault in violation of D.C. Code § 22-404 (2001). Olaniyi, 416 F. Supp. 2d at 48 & nn.7-10. They were indicted on April 1, 2003, and pleaded not guilty at their arraignment on May 29, 2003. Id. at 48. On August 13, 2003, the Court dismissed all charges upon motion of the government. Id.
In January of 2004, the plaintiff, along with his children and Patel, returned to the District of Columbia to retrieve several pieces of artwork that were confiscated by the Capitol Police after the events of the previous March. United States Compl. ¶ 34. While driving near the Capitol Building in the same van discussed earlier in describing the events of the previous March, the plaintiff was pulled over by the Capitol Police. Id. According to the plaintiff, Detective Joseph DePalma, one of the officers present during the plaintiff's arrest in March of 2003, although not involved in the initial stop, subsequently arrived on the scene and appeared to be supervising the activities. Id. ¶ 35. Detective DePalma informed the plaintiff that his vehicle was pulled over "because there was snow on the van and because the Michigan tags made [him] 'suspicious.'" Id. The plaintiff claims that Detective DePalma made "several inappropriate comments" and "other intimidating remarks" to the plaintiff. Id. ¶ 36. These remarks included questions about "why [the plaintiff] and [his family] were back in [Washington] D.C.; why they had the children with them; whether [the plaintiff] had custody of the children; whether he had the authority to remove them from Michigan; and whether he had papers on his person authorizing their transportation." Id. The plaintiff also states that Detective DePalma "had dogs search the van while the children were in it." Id. ¶ 37.
After the January 2004 vehicle stop, the plaintiff alleges a pattern of ongoing harassment and intimidation by Detective DePalma and other members of the federal government, culminating in a visit to the plaintiff's home in Iowa by Secret Service agents. See id. ¶¶ 38-41. According to the plaintiff, the Secret Service agents' visit was prompted by an allegation made by the plaintiff's ex-wife, who had gone to "authorities in Michigan and said [the plaintiff] was going to kill the President." Id. ¶ 40. During the meeting with the Secret Service agents, the plaintiff was questioned about "his life, his parents, his arrest, his travel destinations, and his immigration status," and his son was asked whether the plaintiff ever said he was going to kill the President. Id. The plaintiff also claims that Secret Service Agent Hull threatened him by asking what would happen if the plaintiff's immigration papers were confiscated. Id.
On March 3, 2005, the plaintiff initiated this action against the District of Columbia, Capitol Police officers Joseph DePalma and Preston Nutwell, a John Doe Capitol Police defendant, and a John Doe FBI defendant. See Olaniyi, 416 F. Supp. 2d at 48-49 & n.6. The plaintiff alleged violations of the First, Fourth, and Fifth Amendments of the Constitution stemming from his arrest and detention in the Capitol Building and the warrantless search of his van, and constitutional and common law tort violations by the District of Columbia for conduct that allegedly transpired during the plaintiff's confinement in the Mental Health Unit. Id. at 48-49.*fn10
On February 17, 2006, the Court issued a Memorandum Opinion dismissing on qualified immunity grounds the plaintiff's First Amendment claims, id. at 55, the Fourth Amendment claims pertaining to the plaintiff's arrest and initial detention in the Capitol Building, id. at 58-59, and his Fifth Amendment claims, id. at 63. However, the Court denied the federal defendants' motion to dismiss with respect to the Fourth Amendment claims arising from the search of the plaintiff's van. Id. at 59-60. As the Court explained, "the federal defendants lacked probable cause to believe that the plaintiff's van contained any explosives once no explosives were found on the plaintiff's person, and thus the absence of exigent circumstances is fatal to any qualified immunity claim as to the warrantless search of the vehicle." Id. at 60. The Court's prior opinion did not address the claims against the District of Columbia because it had not filed any motion to dismiss, id. at 48 n.6, or the impact of the January 2004 vehicle stop because the plaintiff had not asserted yet any specific claims arising from that incident, id. at 48 n.11.
On October 31, 2006, the plaintiff filed his Second Amended Complaint. With the exception of naming additional federal defendants, see Am. Compl. at 1-11,*fn11 this complaint was based largely on the same facts as the prior complaint, and alleged the same legal violations as set out in the first complaint, see Docket Entry 67, Notice of Filing ¶¶ 4-5.*fn12
On December 20, 2006, the plaintiff filed a separate complaint against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2006) (the "FTCA"), alleging the following six common law violations committed by the Capitol Police and Secret Service: (1) false arrest and imprisonment associated with the plaintiff's arrest in the Capitol Building in March 2003; (2) false arrest and imprisonment associated with the vehicle stop in January 2004; (3) malicious prosecution; (4) intentional infliction of emotional distress; (5) conversion of property; and (6) loss of future earnings, humiliation, and damage to reputation. United States Compl. ¶¶ 43-72; see also Pl.'s Opp'n to United States' Mot. at 10 n.4.
On March 20, 2007, the plaintiff voluntarily dismissed his claims against all members of the District of Columbia Department of Corrections except defendants Darius Mills and Gwendolyn Gibson. See Docket Entry 94, Notice of Voluntary Dismissal of Certain Defendants ¶ 4. Defendant Mills, proceeding pro se, then filed an "Answer to and Request for Dismissal Based on Lack of Merit," Docket Entry 139, which the Court ultimately construed as an answer. Docket Entry 140.*fn13 Defendant Gibson has not filed any response in this case, and a default was entered against her on May 31, 2007. Docket Entry 113.
As noted at the outset of this opinion, the United States, the District of Columbia, and the individual federal defendants have filed either motions to dismiss or, alternatively, motions for summary judgment. The defendants assert a number of arguments in support of their respective motions, and the Court will examine each defendant's arguments in turn.
A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)
A motion for dismissal under Rule 12(b)(1) "presents a threshold challenge to the court's jurisdiction . . . ." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); see also Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that a Rule 12(b)(1) motion imposes an affirmative obligation on the court to ensure it is acting within its jurisdictional authority). Specifically, the Court may dismiss a claim if the Court "lack[s] . . . subject matter jurisdiction" to entertain it. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), "it is presumed that a cause lies outside [the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co., 511 U.S 375, 377 (1994), and the plaintiff bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence, see, e.g., Moore v. Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008). In deciding a motion to dismiss based upon lack of subject matter jurisdiction, a Court is not limited to the allegations set forth in the complaint, but "may consider materials outside the pleadings." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). However, when reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court is required to accept as true all factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).
B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
On the other hand, a motion to dismiss under Rule 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), which is sufficient to "give the defendant fair notice of what the claim is and the grounds on which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Federal Rule of Civil Procedure 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555 (internal quotation omitted)). In other words, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, __U.S. at __, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). A complaint alleging facts which are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly 550 U.S. at 557 (internal quotation marks omitted))..
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint, and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted). Although the Court must accept the plaintiffs' factual allegations as true, conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, __ U.S. at __, 129 S. Ct. at 1950. Furthermore, where "more likely explanations" than those alleged by the plaintiff exist, the Court should be reluctant to find that the plaintiff's allegations have sufficiently nudged his claims into the realm of plausibility. See id. at 1951-52. If "the [C]court finds that the plaintiffs have failed to allege all the material elements of their cause of action," then the Court may dismiss the complaint ...