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Morello v. District of Columbia

United States District Court, D. Columbia.

November 7, 2014


For FRANK D. MORELLO, Plaintiff: Matthew August LeFande , LAW OFFICES OF MATTHEW AUGUST LEFANDE, Arlington, VA.


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Emmet G. Sullivan, United States District Judge.

Frank David Morello brings this action against the District of Columbia (" the District" ) under 42 U.S.C. § 1983, alleging a violation of rights protected under the United States Constitution, specifically, the equal protection and due process guarantees of the Fifth Amendment. Mr. Morello claims that his constitutionally protected rights were violated when he was denied the photographic identification described in the Law Enforcement Officers Safety Act of 2004, 18 U.S.C. § 926C (" LEOSA" ). Pending before the Court is the defendant's motion to dismiss plaintiff's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court GRANTS defendant's motion.

I. Background

Mr. Morello is a former police officer with the Metropolitan Police Department (" MPD" ). See Compl., ECF No. 1 ¶ 1. Mr. Morello began his career with the MPD on February 20, 1990 and on December 21, 2001, after more than ten years of service as a police officer, submitted his resignation paperwork to pursue other career opportunities. See id. ¶ ¶ 10, 11.

On September 19, 2013, Mr. Morello, pursuant to LEOSA, submitted an application to the MPD for a photographic identification. Id. at ¶ 16. Under LEOSA, a " qualified retired law enforcement officer" who possesses " photographic identification issued by the agency from which the individual separated from service as a law enforcement officer" " may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 926C. On November 15, 2013, Mr. Morello was informed, by Sergeant Colin Hall of the MPD Gun Control Unit, that his application for the photographic identification was rejected because his separation from the MPD was not " in good standing." See Compl., ECF No. 1 ¶ 19. Mr. Morello was also informed that, should he have any questions about the MPD's decision, he can contact Sergeant Hall directly. Id. at Ex. F.

On January 21, 2014, Mr. Morello filed this lawsuit against the District. Compl., ECF No. 1. He alleged violations of his Fifth Amendment rights. Id. On April 7, 2014, the District moved to dismiss Mr. Morello's claims. See Mot., ECF No. 6. Mr. Morello filed his opposition brief on May 8, 2014. See Opp., ECF No. 8. The District filed its reply on May 19, 2014. See Reply, ECF No. 9. The District's motion to dismiss is now ripe for determination by the Court.

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II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) " tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002). A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation marks omitted). While detailed factual allegations are not necessary, plaintiff must plead enough facts to " raise a right to relief above the speculative level." Id.

When ruling on a Rule 12(b)(6) motion, the Court may consider " the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002). The Court must construe the complaint liberally in plaintiff's favor and grant plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not accept plaintiff's inferences that are " unsupported by the facts set out in the complaint." Id. " [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Most important for this case, the Supreme Court instructs that a pleading must offer more than " labels and conclusions" or a " formulaic ...

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