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Gresham v. District of Columbia

United States District Court, D. Columbia.

September 5, 2014


Page 179

For Melvin E. Gresham, Plaintiff: Donna Williams Rucker, LEAD ATTORNEY, Mackenzie B. Coy, RUCKER & ASSOCIATES, PC, Washington, DC USA.

For District of Columbia, A Municipal Corporation, Defendant: Sarah L. Knapp, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.

Page 180

Re Document No.: 38


RUDOLPH CONTRERAS, United States District Judge.

Granting Defendant'S Motion for Summary Judgment


Plaintiff Melvin Gresham brings this employment discrimination action against his employer, the District of Columbia (" District" ), alleging claims under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Pending before the Court is the District's motion for summary judgment, on the grounds that, inter alia, this case is barred by res judicata. See ECF No. 38. For the reasons that follow, the Court will grant the District's motion.


The Plaintiff Melvin Gresham is currently a Second District Captain for the Metropolitan Police Department (" MPD" ). See Def.'s Statement Undisputed Facts ¶ 1, ECF No. 38. He has been an MPD employee since 1984. Id. In 2008 and 2009, Cpt. Gresham brought three other lawsuits involving similar factual allegations to the ones brought in this suit, and as such, the Court will chronicle the facts of each to provide a cohesive background.

A. Gresham v. Lanier, 08-cv-1117

On June 27, 2008, Cpt. Gresham (" Plaintiff" ) brought suit against MPD, MPD Chief Cathy Lanier, and several other officers of the MPD. Plaintiff alleged, inter alia, that in 2004, he " was ordered to 'target' Lt. Ronda Nunnally and to assist other uniformed officers in driving her from the police workforce." Compl. ¶ 10, ECF No. 38-5. Lt. Nunnally had filed a lawsuit in 2004 against MPD for, inter alia, sex discrimination, and Plaintiff

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agreed to testify on her behalf, because he had witnessed another officer physically assault her. Compl. ¶ ¶ 11.12. He alleged that he was offered a promotion if he changed his testimony and denied that he was ordered to target Lt. Nunnally. Compl. ¶ 14. Plaintiff allegedly reported these attempts by the District of Columbia Assistant Attorney General to " suborn perjury," in an affidavit to the Superior Court judge in Lt. Nunnally's case. Compl. ¶ ¶ 14.15. Ultimately Superior Court Judge Combs-Green did not allow Plaintiff to testify in Nunnally's case because she found the bribery allegations to be " very serious," and was disappointed Plaintiff's attorney had made such allegations against other attorneys. Compl. ¶ ¶ 15.16.

Meanwhile, in the same complaint, Plaintiff also made allegations that his co-worker, Lieutenant Michael Smith, had been subject to several disciplinary actions including: (1) an incident occurring on October 6, 2007 involving Smith harassing another police officer; (2) an incident occurring in March 2008 where Smith was reprimanded for violations of Department policy on mailing tickets to those charged with violations; and (3) an incident occurring in April 2008 where Smith was disciplined for misconduct. See Compl. ¶ ¶ 17.21. In those allegations, he also described what discipline, if any, Smith incurred for his behavior.

In addition, Plaintiff alleged that on or around January 7, 2008, someone " anonymously" reported that Plaintiff had abused his police powers by using his rank to influence and intimidate an investigating officer to alter an investigative report, in connection with a metro bus accident Plaintiff had been " involved in [in] a police scout car while on duty." Compl. ¶ ¶ 22.23.[1] Plaintiff believed the anonymous report to be written by Lt. Smith based on a comparison of the one page anonymous letter with transcript testimony of Lt. Smith. Compl. ¶ 24. In connection with the metro bus incident, Plaintiff also alleged that someone at MPD " leaked" the allegations against him to the media, describing Plaintiff " as a police officer that had abused his power to avoid liability in an accident with a metro bus." Compl. ¶ 23. Because of Plaintiff's conduct regarding that incident report and investigation, Chief Lanier recommended that Plaintiff be " summoned before a trial board with the intent that he be discharged from the police force." Compl. ¶ 27. Ultimately, the charges against Plaintiff were withdrawn, but he was still issued an Official Reprimand. Compl. ¶ ¶ 28.29. Plaintiff finally alleged that he " has been DENIED promotions, and subjected to a hostile work environment all in retaliation for his Whistleblower activities and his refusal to participate in illegal acts of retaliation against fellow police officers." Compl. ¶ 31.

In that action, Plaintiff asserted causes of action for (1) MPD's violation of 5 U.S.C. § 2301(b)(8), (2) MPD's violation of D.C. Code § 1-615.51 et seq. (D.C. Whistleblower Protection Act), (3) Breach of Contract, see Compl. ¶ 44 (alleging that MPD " had a duty to Cpt. Gresham by way of the terms of employment to provide him every employment opportunity to be fairly

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considered for promotion, to avoid being targeted for retaliation, or otherwise harassed" ), (4) Defamation, and (5) Intentional Infliction of Emotion[al] Distress.

The District moved to dismiss under Federal Rule of Civil Procedure 12(b)(4) for failure to effect proper service pursuant to Federal Rules of Civil Procedure 4(e) and 4(j). See Defs.' Mot. to Dismiss 1, Gresham v. Lanier, No. 08-1117, ECF No. 12 (D.D.C. Oct. 28, 2008). In a minute order dated December 9, 2008, the Court granted that motion, saying that " [t]he complaint is dismissed without prejudice. The plaintiff is permitted to file a new and properly served complaint naming only the District of Columbia as a defendant provided the complaint is filed within 30 days." See Gresham v. Lanier, No. 08-1117, Minute Order (D.D.C. Dec. 9, 2008).

B. Gresham v. District of Columbia, 09-cv-0029

In accordance with the district court's minute order, Plaintiff re-filed his 2008 lawsuit against MPD in 2009. In a new complaint filed January 8, 2009, Plaintiff alleged essentially the same facts that he alleged in his 2008 lawsuit. See Compl. ¶ ¶ 4.14, Gresham v. District of Columbia, No. 09-0029, ECF No. 1 (D.D.C. Jan. 8, 2009) (describing the 2004 lawsuit Lt. Nunnally had filed and Plaintiff's instruction from superiors to drive her from the workplace and not to testify on her behalf, the various disciplinary incidents of Lt. Smith, and the accident with the metro bus in which Plaintiff was accused of violating his police powers to intimidate a junior police officer investigating the accident).

However, in this new suit, Plaintiff asserted three causes of action against the District: (1) violation of Plaintiff's First Amendment rights under 42 U.S.C. § 1983 by " initiating an adverse prosecutorial action against him for speaking out against corruption and discriminatory treatment of fellow officers by agents of the District of Columbia; " see Compl. ¶ 19, (2) violation of the D.C. Whistleblower Protection Act, D.C. Code § 1-615.51 et seq., for taking " adverse retaliatory action against him for his refusal to join in retaliatory, discriminatory and harassing acts against other uniformed officers targeted for discharge; " see Compl. ¶ 22, and (3) Intentional Infliction of Emotion[al] Distress.

The district court ultimately dismissed the Plaintiff's First Amendment 42 U.S.C. § 1983 claim on the grounds that the Plaintiff " failed to show that his injuries resulted from an unconstitutional policy or practice for which the District can be held liable." See Memorandum 1, Gresham v. District of Columbia, 639 F.Supp.2d 17 (D.D.C. 2009). The district court declined to exercise supplemental jurisdiction over the Plaintiff's state law claims and dismissed those counts without prejudice. See Memorandum at 5.6; see also Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 25 (D.D.C. Aug. 3, 2009) (" [D]efendant's motion to dismiss, treated as a motion for summary judgment . . . is granted as to Count I. Counts II and III are dismissed without prejudice." ). After Plaintiff amended his complaint to assert diversity jurisdiction as a basis upon which to keep his state claims alive, the court dismissed Plaintiff's complaint entirely, on the basis that the Plaintiff could not assert a diversity jurisdiction claim against the District of Columbia as defendant--because the District is not a " citizen of a state" --citing Long v. District of Columbia, 820 F.2d 409, 414, 261 U.S.App.D.C. 1 (D.C. Cir. 1986). See Memorandum 1, Gresham v. District of Columbia, No. 09-0029, ECF No. 32, (D.D.C. Sept. 9, 2009); Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 33 (D.D.C. Sept. 9, 2009). The Plaintiff appealed that decision, see ECF No. 34, and the D.C. Circuit affirmed

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the district court's dismissal of the case. See ECF No. 36. Thus, Count I was ultimately dismissed on the merits, and Counts II & III were ultimately dismissed for lack of subject matter jurisdiction (though not explicitly couched as such).

C. Hoffman v. Lanier, 08-cv-1924

Meanwhile, in November 2008, Plaintiff filed another lawsuit, joined by seven other plaintiffs, against the District of Columbia and the United States Drug Enforcement Agency (" DEA" ). The suit arose out of an incident that occurred on Plaintiff's property located at 2905 Georgia Avenue, NW, on July 31, 2008. See Am. Compl. ¶ 11, Hoffman v. Lanier, No. 08-1924, ECF No. 2 (D.D.C. Nov. 26, 2008). The property was owned by Plaintiff, but he leased it to the District of Columbia Housing Authority, who in turn screened and placed families in the residence under its Section 8 Program. Am. Compl. ¶ 20. Plaintiff, along with seven others present at the time, alleged that they were victims of a DEA/MPD raid of that property. Am. Compl. ¶ ¶ 1.8. They alleged that Chief Lanier, agents of the Office of the District of Columbia Attorney General, and agents of the United States Attorney's Office authorized unlawful surveillance operations and an unlawful search and seizure of the Plaintiff's Georgia Avenue property. Am. Compl. ¶ ¶ 23.26. They also alleged that during the " raid," officers " threatened to use deadly force, and did terrorize the plaintiffs putting them in fear of loss of life." Am. Compl. ¶ 27.

Plaintiff alleged that " from July 2007 to December 2007, agents of the DCMPD developed and executed a program of retaliation against Captain Gresham . . . [with] [t]he objective [being] to dismiss Caption [sic] Gresham from DCMPD employment." Am. Compl. ¶ 13. Plaintiff alleged that he " became the target of the defendants for . . . whistleblower actions against corrupt DCMPD officers, and to [sic] in retaliation against him for his refusal to give false testimony against Lt. Nunnally in another civil case." Id. Plaintiff again raised the allegations regarding Lt. Smith and the " anonymous" complaint initiated against him for abusing his police powers in connection with an accident report in January 2008. Am. Compl. ¶ 14. Plaintiff also reiterated his allegations against Lt. Smith, explaining that " Lt. Smith has a history of disciplinary problems." Am. Compl. ¶ 18.

The eight plaintiffs brought the following fifteen causes of action against both the MPD and the DEA: (1) violation of First Amendment rights under 42 U.S.C. § 1983,[2] (2) violation of Fourth Amendment rights under 42 U.S.C. § 1983, (3) violation of Fifth Amendment rights under 42 U.S.C. § 1981, (4) violation of the D.C. Whistleblower Protection Act, D.C. Code § 1-615.51 et seq.; (5) Defamation, (6) Invasion of Privacy-False Light, (7) Assault, (8) Battery, (9) Malicious Prosecution, (10) Theft, (11) Intentional Infliction of Emotional Distress, (12) Violation of the District of Columbia Human Rights Act, (13) Aiding and Abetting, (14) Conspiracy, and (15) Declaratory Judgment. See generally Am. Compl. Important to this Court's analysis, the cause of action for violation of the District of Columbia Human Rights Act alleged that " Chief Lanier authorized a series of discriminatory acts against Captain Gresham on account of his race

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(African-American), and DENIED him promotion, sought to fire him and authorized raids on his property and defamatory comments ...

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