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Peter James Atherton v. District of Columbia Office

September 26, 2011

PETER JAMES ATHERTON, PLAINTIFF,
v.
DISTRICT OF COLUMBIA OFFICE
OF THE MAYOR ET AL, DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

In this civil rights action filed pro se, plaintiff challenges his removal on April 11, 2001, from a grand jury convened in the Superior Court of the District of Columbia. On April 5, 2007, the Court entered judgment for the defendants. The Court of Appeals for the District of Columbia Circuit affirmed in part, reversed in part, and remanded the case for a determination of whether defendants Suzanne Bailey-Jones and Daniel M. Zachem are protected by qualified immunity from plaintiff's due process claim. See Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 677 (D.C. Cir. 2009) (reversing dismissal of due process claims against those defendants on ground of absolute immunity).*fn1

Presently before the Court are the separate motions of Suzanne Bailey-Jones [Dkt. # 64] and Assistant United States Attorney ("AUSA") Daniel Zachem [Dkt. # 66] to dismiss under Fed. R. Civ. P. 12(b)(6), on the ground of qualified immunity, which plaintiff, by counsel, has opposed [Dkt. # 72].*fn2 Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant each defendant's motion to dismiss.

I. BACKGROUND

The complaint allegations as recited by the D.C. Circuit are as follows.

Atherton is a D.C. resident with degrees in electrical and nuclear engineering. Compl. ¶¶ 1, 68. On April 9, 2001, he was sworn in as a D.C. Superior Court grand juror for a term scheduled to last 25 days. Id. ¶¶ 1, 16. However, on April 11, 2001, Atherton was permanently removed from the grand jury. Id. ¶¶ 22-24.

Atherton and the grand jurors with whom he served were given jury instruction books identifying crimes and their elements. Atherton believed that some of the cases for which indictments were being sought included alleged crimes which were not in the instruction book. Id. ¶ 18. Concerned that grand jurors had voted to indict without knowing the elements of the crimes, Atherton requested additional information from an AUSA on the elements of crimes that were not contained in the instruction book. Id. ¶¶ 18-19. Some jurors "seemed upset" because they had voted to indict without knowledge of the elements "and a new vote would be needed once the elements of the charge were known." Id. ¶ 20. Atherton "felt a hostile attitude from a few members of the jury when there was continuing rebuttal to every comment [he] made concerning deliberation on elements of crimes." Id. ¶ 66.

Atherton also felt that his fellow grand jurors reacted negatively to his Hispanic ethnicity. At one point during their deliberations, the grand jury was considering a homicide case involving an altercation between black and Hispanic individuals. After a Hispanic witness had finished testifying, Atherton thanked the witness in Spanish. Atherton subsequently perceived hostility from other grand jurors based on this incident. Id. ¶¶ 64-67. He is half Mexican and "was the only semi-fluent [S]panish speaking grand juror." Id. ¶ 67.

During the course of grand jury deliberations on April 11, 2001, supervising AUSA Zachem entered the jury room where the grand jurors were deliberating, confiscated Atherton's notes, and directed Atherton to immediately report to Wynn's office. Id. ¶ 23-24. Atherton went to Wynn's office as he had been instructed. Id. Atherton was then directed to Bailey-Jones, who "permanently dismissed" him. Id.

¶ 24. Atherton "was never permitted the opportunity to defend himself," id. ¶ 28, and Bailey-Jones did not provide reasons for his dismissal, other than that he was allegedly "disruptive." Id. ¶ 24. Atherton asked for a written explanation and Bailey-Jones assented to this request. However, written notice was never given. Id.

¶¶ 28, 44. "Atherton left feeling very humiliated, embar[r]assed and questioning his self worth, and did not return to grand jury duty." Id. ¶ 27.

Atherton, 567 F.3d at 678.

II. DISCUSSION

1. Qualified ...


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