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David Mcdonald v. Ken Salazar et al

December 23, 2011


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff David McDonald, an employee of the United States Park Police ("USPP"), brings claims against the Secretary of the Interior and USPP employees Diana Smith, Philip Beck, and Warren Boyer,*fn1 alleging violations of McDonald's Fourth and Fifth Amendment rights, a hostile work environment, and retaliation. Defendants have filed a motion to dismiss the amended complaint, arguing that McDonald's claims are untimely, that special factors counsel hesitation in creating a remedy for McDonald's alleged constitutional violations, and that the defendants are entitled to qualified immunity. Although McDonald's claims are timely, he has failed to state a Fifth Amendment due process claim, the defendants are entitled to qualified immunity on his Fourth Amendment claim, and the existence of a comprehensive remedial scheme for allegations by federal employees of employment discrimination precludes his hostile work environment and retaliation claims. Therefore, the defendants' motion to dismiss will be granted.


The amended complaint and materials it refers to set forth the following background and allegations. McDonald, a black male, has served as an officer with the USPP, an entity within the Department of the Interior, for fifteen years. (Am. Compl. ¶¶ 4-5.) McDonald filed equal employment opportunity ("EEO") complaints alleging that Beck, a white male and the commanding officer in McDonald's district, discriminated and retaliated against him. (Id. ¶ 6.) On May 26, 2006,*fn2 Beck held a meeting in his office with McDonald. McDonald believed that Beck planned to discipline him at the meeting, and he brought with him a tape recorder, which he placed in his shirt pocket. (Id. ¶ 7.) At the conclusion of the meeting, McDonald began to leave the room, but Beck ordered McDonald not to leave and to provide to Beck the object in McDonald's shirt pocket. Beck "physically blocked his office door[.]" (Id.) McDonald repeatedly refused to furnish the object and, in response to Beck's question asking whether the object was a tape recorder, denied that it was one. (Id.; Defs.' Mot. to Dismiss Compl., Ex. 1, Notice of Proposed Removal ("Notice") at 1-2.)*fn3 Beck summoned other officers to the room, one of whom threatened to strip search McDonald. (Am. Compl. ¶ 7.) McDonald then requested union representation, and once a representative arrived, Beck ordered McDonald to remove his jacket, gun belt, and boots. (Id. ¶¶ 8-9.) Boyer physically searched McDonald's person. When ordered to empty his pockets and socks, McDonald removed the tape recorder, concealed in a brown case.*fn4 Beck ordered McDonald to surrender his badge, gun, credentials, and the keys to his home-to-work vehicle. (Id. ¶ 9.)

After the incident in Beck's office, the USPP placed McDonald on administrative leave. McDonald later returned to work on restricted duty, assigned to the USPP's Brentwood Auto Shop, cleaning and stripping decals from police vehicles instead of engaging in his former policing duties. (Id. ¶ 10.) On April 8, 2008,*fn5 Smith, Commander of the Office of Professional Responsibility, proposed removing McDonald from employment for his lack of candor and failure to follow a direct order. (Id. ¶ 11; Notice at 1.) The Notice alleges that McDonald's conduct was "in violation of G.O. 32.03, II, 22, which states, in part, 'An officer shall promptly obey all lawful orders issued by a superior officer.'" (Notice at 5.) The Notice also alleges that McDonald violated "General Order (G.O.) 32.03, II, section 26, which states, 'It is the duty of a subordinate officer to respond truthfully to questions asked by a supervisor in connection with matters relating to the official business of the Force.'" (Id. at 5.)
On October 2, 2008, McDonald filed this suit alleging violations of his Fourth and Fifth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Pl.'s Opp'n to Defs.' Mot. to Dismiss Am. Compl. ("Pl.'s Opp'n") at 4), and seeking legal and equitable relief and attorney's fees.*fn6 He claims that the defendants unreasonably searched and seized him, removed him from his duties without procedural or substantive due process, deprived him of a liberty interest without a hearing, and violated his due process rights by creating a hostile work environment and retaliating against him for filing prior EEO complaints. (Am. Compl. ¶¶ 13, 17, 20, 23.) The defendants move to dismiss, arguing that McDonald's claims are untimely, that special factors counsel hesitation in creating a remedy for McDonald's alleged constitutional violations, and that the defendants are entitled to qualified immunity.*fn7 (Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss Am. Compl. ("Defs.' Mem.") at 7-8.)


In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff, Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002), and "assume the truth of all well-pleaded allegations." Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). "[T]he court need not accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff does not need to plead detailed factual allegations. Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 16 (D.C. Cir. 2008) (stating that "[i]n general, a complaint should simply identify the 'circumstances, occurrences, and events' giving rise to the claim" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007))). But, enough facts must be pled to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Documents "appended to [a] motion to dismiss . . . whose authenticity is not disputed . . . may be considered . . . [when] they are referred to in the complaint and are integral to [plaintiff's] claim." Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).*fn8


The defendants argue that McDonald's constitutional claims are untimely because they stem from events that occurred more than one year before he filed suit. (Def.'s Mem. at 11-12.) "When a federal action contains no statute of limitations, courts will ordinarily look to analogous provisions in state law as a source of a federal limitations period." Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). District of Columbia law therefore provides the appropriate limitations periods for McDonald's Bivens claims. See Lederman v. United States, 131 F. Supp. 2d 46, 60 (D.D.C. 2001). Section 12-301 of the D.C. Code provides in relevant part:

Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues . . .

(4) for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment ---- 1 year; . .

(8) for which a limitation is not otherwise specially prescribed ---- 3 years[.]

D.C. Code §§ 12-301(4), (8).

A proper limitations provision must account for the characteristics of litigation under the analogous federal statute, including the policies underlying and the practicalities involved in litigating the federal cause of action. See Burnett v. Grattan, 468 U.S. 42, 50 (1984) (holding that the appropriate state limitations period for civil rights claims must account for the goals underlying the Civil Rights Act). The defendants, citing Wormley v. United States, 601 F. Supp. 2d 27, 35 (D.D.C. 2009), argue that McDonald's unreasonable search and seizure claims are analogous to false arrest and false imprisonment. (Defs' Mem. at 11.) "This Circuit has recognized, however, that 'interests respectively protected by federal constitutional law and local assault law are not congruent, and that injuries inflicted by officers acting under color of (legal authority) are significantly different in kind from those resulting from acts of private persons.'" Lederman, 131 F. Supp. 2d at 61 (alteration in original) (quoting Payne v. Gov't of D.C., 559 F.2d 809, 817 n.32 (D.C. Cir. 1977)). In the context of § 1983 claims, the Supreme Court has held that courts should borrow limitations periods from general or residual personal injury actions and not from intentional tort actions because constitutional claims "bear little if any resemblance to the common-law intentional tort." Owens v. Okure, 488 U.S. 235, 249 (1989). Applying the general or residual limitations period for § 1983 claims best promotes the federal interests in uniformity, certainty, and minimization of unnecessary litigation. See id. at 240. These same concerns underlie Bivens actions. See Williams v. Hill, 74 F.3d 1339, 1340-41 (D.C. Cir. 1996) (noting that the bodies of law for § 1983 and Bivens actions overlap in most respects); Lederman, 131 F. Supp. 2d at 61.

Because "the general limitations provision better accounts for the goals of a Bivens action, namely, to promote uniformity and finality for potential litigants bringing federal constitutional claims," Lederman, 131 F. Supp. 2d at 62, the appropriate limitations period is the three-year period. See also Hobson v. Brennan, 625 F. Supp. 459, 467-68 (D.D.C. 1985) (reasoning that the three-year limitations period is more appropriate for the complex claims alleged in § 1983, § 1985, and Bivens actions); Logiurato v. ACTION, 490 F. Supp. 84, 90-91 (D.D.C. 1980) (rejecting contention that plaintiff's allegations that defendants acting under color of law drugged, repatriated, and hospitalized the plaintiff against his will are analogous to the common law torts of assault, false arrest, and false imprisonment for the purposes of determining the appropriate limitations period and holding that § 12-301(8) applies to constitutional torts).*fn9 McDonald filed his complaint on October 2, 2008, alleging Bivens claims based on events that took place on May 26, 2006. The three-year period had not expired when he filed his complaint, and, therefore, his Bivens claims are timely.


McDonald claims that the defendants violated his due process

rights by removing him from his duties as a police officer without procedural due process and denying him a name-clearing hearing after they defamed him. (Am. Compl. ¶¶ 17, 20.) "Whether any procedural protections are due [under the Fifth Amendment] depends on the extent to which an individual will be 'condemned to suffer a grievous loss.'" Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)). Only after a plaintiff demonstrates a deprivation of a liberty or property interest does a court determine ...

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