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Thorp v. the District of Columbia

United States District Court, D. Columbia

November 5, 2015

MARK THORP, Plaintiff,
THE DISTRICT OF COLUMBIA, et al., Defendants

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[Copyrighted Material Omitted]

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          For MARK THORP, Plaintiff: Matthew August LeFande, MATTHEW AUGUST LEFANDE ATTORNEY AT LAW PLLC, Arlington, VA.


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         JAMES E. BOASBERG, United States District Judge.

         Mark Twain once observed, " [T]he dog is a gentleman; I hope to go to his heaven, not man's." Letter to William D. Howells, April 2, 1899, in Selected Mark Twain-Howells Letters 1872-1910 at 331 (Anderson et al. eds., 1967). Plaintiff Mark Thorp, a dog owner who alleges that members of the Metropolitan Police Department treated him and his canine companion in an ungentlemanly and unconstitutional manner, would doubtless agree. In the current suit, he complains that MPD officers, inter alia, unlawfully searched his house, improperly seized and damaged his property, abused their law-enforcement authority to intimidate him, maliciously initiated unfounded criminal proceedings against him, and injured his dog. Defendants -- the District of Columbia and a single named police officer -- now move to dismiss the Complaint, and Thorp cross-moves for partial summary judgment. After addressing all ten counts of the Complaint, the Court will grant in part and deny in part Defendants' Motion and deny Thorp's altogether.

         I. Background

         Thorp, a resident of the District of Columbia, brings this suit against the District and Lieutenant Ramey Joseph Kyle, an MPD officer, in his individual capacity. See Second Amended Complaint (SAC), ¶ ¶ 11-13. For purposes of Defendants' Motion to Dismiss, the Court views the facts as pled in the Second Amended Complaint as true. See ECF No. 22. (It will address the facts in Thorp's Motion in Section III.K, infra. )

         Thorp alleges that the catalyst for the events detailed in his latest Complaint was a defamation suit he brought -- and ultimately won -- in D.C. Superior Court against non-party Kathy Henderson. Id., ¶ ¶ 16-17. In that action, Thorp claimed that Henderson, an Advisory Neighborhood Commissioner, had published false statements suggesting that Plaintiff's company, JVLHC, LLC -- operator of the local bar Jimmy Valentine's Lonely Hearts Club -- had violated the law and threatened

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public safety by selling illegal drugs. Id., ¶ 16. The Superior Court found in his favor and awarded his company more than $150,000 in damages and attorney fees, but, Plaintiff alleges, members of MPD " attempted to interfere and delay the execution of [that] judgment." Id., ¶ ¶ 16-22. Such interference was the subject of another lawsuit in this Court, JVLHC, LLC v. Hughes, No. 14-1747, id. ¶ 23, which was voluntarily dismissed by JVHLC. See No. 14-1747, ECF No. 7.

         With that prior dispute as a backdrop, Plaintiff's allegations here center on Defendant Kyle, the MPD officer whose unit is responsible for enforcing narcotics violations in Plaintiff's neighborhood but allegedly has no mandate to enforce " animal violations." See SAC, ¶ ¶ 30-31. According to Thorp, Kyle " is, or has previously been, in a romantic relationship with a woman who previously had a romantic relationship with the Plaintiff," and this shared personal history is the source of Kyle's animus toward Thorp. Id., ¶ ¶ 29, 46. That animus, Thorp believes, led Kyle to conspire " with Henderson and unknown members of the Metropolitan Police Department Command staff . . . to use assets and personnel of the [MPD] to intimidate and retaliate against" Thorp for filing his lawsuit against Henderson. Id., ¶ 34. He alleges that MPD officers have posted themselves outside his house, stopped him and searched his vehicle without probable cause, issued parking tickets on his legally parked vehicles, and " taunt[ed] the Plaintiff by yelling into the windows of his residence." Id., ¶ ¶ 38-41.

         Plaintiff alleges that on the day that a local newspaper announced the sale of Henderson's property at auction to help satisfy the Superior Court judgment, Kyle, accompanied by other members of his MPD unit, executed a " no knock" search warrant " purportedly and solely for an allegation of animal cruelty regarding the Plaintiff's dog." Id., ¶ 42. Thorp states that the warrant was based on false statements, was intended to intimidate him, and did not yield any evidence of animal cruelty. Id., ¶ ¶ 43-50. Plaintiff alleges that Kyle's true motive was to search for illegal drugs in Thorp's home and that after Thorp's dog was found unharmed, Kyle exceeded the scope of the original warrant by searching through " closed containers." Id., ¶ ¶ 50-54. Inside, he found substances that tested positive for amphetamines. Id., ¶ 54; see also MTD at 8 (indicating that the amphetamines were found in Plaintiff's freezer).

         Following that discovery, " Kyle sought an additional search warrant." Id., ¶ 54. Yet Thorp insists that he had a " current and legal prescription for at least one amphetamine based pharmaceutical" ; that Kyle knew of that prescription; and that Kyle " knowingly withheld his knowledge" of the prescription when MPD applied for an additional search warrant on the basis of the discovered amphetamines. Id., ¶ ¶ 55-58. After this second search -- which Thorp deems a " raid" -- Kyle arrested and charged him with animal cruelty and possession of illegal drugs. Id., ¶ ¶ 59, 64. Plaintiff further alleges that during the two searches, Kyle or his MPD team seized Thorp's dog, cash receipts from his nightclub businesses, and " [o]ther valuable property . . . including jewelry," and that they destroyed " [n]umerous items" of his property, including much of his furniture, in the process. Id., ¶ ¶ 62-66. Plaintiff alleges that both he and his dog suffered various injuries during and after the raid, and that he was " subjected to burdensome and humiliating conditions of pre-trial release" before the criminal charges against him were dropped. Id., ¶ ¶ 69-80.

         Seeking redress for these injuries and the purportedly unlawful events that produced them, Plaintiff brought the instant

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lawsuit, requesting compensatory and punitive damages and attorney fees. His original Complaint advanced eight counts and was accompanied by a Motion for a Temporary Restraining Order and a Motion for a Preliminary Injunction. The Court denied the former, and Thorp subsequently withdrew the latter and filed an Amended Complaint. See ECF Nos. 1, 3, 4, 12, 13, and Minute Order of Feb. 13, 2015. Defendants then filed a Motion for More Definite Statement, arguing that the changed circumstances of the dispute between Thorp and Kyle -- e.g., the return of the dog -- as well as Thorp's voluntary dismissal of one of the original Defendants, merited a restatement of Plaintiff's substantive claims. See ECF No. 17 at 1. The Court agreed and ordered Thorp to file a Second Amended Complaint; he complied, and that pleading is the one at issue here. See ECF Nos. 20, 22. Plaintiff now advances ten separate counts -- " deprivation of property," " deprivation of a liberty interest," Fourth Amendment " deprivation," negligent supervision and retention, conspiracy, common-law malicious prosecution, § 1983 malicious prosecution, two counts of abuse of process, and " injunctive relief" -- under 42 U.S.C. § § 1983, 1985, and the common law of the District of Columbia. See SAC, ¶ ¶ 81-133.

         Defendants now move to dismiss the Second Amended Complaint, and Thorp both opposes that Motion and also moves for Partial Summary Judgment.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief when the complaint " fail[s] to state a claim upon which relief can be granted." In evaluating a motion to dismiss under Rule 12(b)(6), the Court must " treat the complaint's factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (internal quotation marks and citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court need not accept as true, however, " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S.App.D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), " a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even if " recovery is very remote and unlikely," the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see Fed.R.Civ.P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. See Fed.R.Civ.P. 10(c). Where the Court must consider " matters outside the pleadings" to reach its conclusion, a motion to dismiss " must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725, 355 U.S.App.D.C. 344 (D.C. Cir. 2003).

         Summary judgment, conversely, is appropriate when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a);

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see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " A fact is material if it 'might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692, 383 U.S.App.D.C. 74 (D.C. Cir. 2008) (quoting Anderson, 477 U.S. at 248).

         Although the Court must view all of the facts in the light most favorable to the non-moving party, the non-moving party's opposition must consist of more than mere unsupported allegations or denials, and it must be supported by affidavits, declarations, or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (" [W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'" ) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

         III. Analysis

         In considering the two competing Motions, the Court will devote the lion's share of its discussion to separate analyses of each of Plaintiff's counts. It will then conclude with a brief examination of his Motion for Partial Summary Judgment.

         A. Monell Liability

         Before proceeding to its count-by-count analysis, the Court must first address the threshold issue of the District's liability here for constitutional violations. Plaintiff unhelpfully never specifies which of his ten counts is asserted against which Defendant, forcing the Court to assume that all are alleged against both the District and Kyle. While some of the common-law counts rely on a theory of vicarious liability ( e.g., Counts VII-IX), the constitutional ones (Counts I-III, purportedly IV, and VI), which are brought under 42 U.S.C. § 1983, cannot do so.

         Instead, " [t]o state a Section 1983 claim against a municipality, a plaintiff must . . . allege that it maintained a policy or custom that caused the violation of his or her constitutional rights." Kenley v. District of Columbia, 83 F.Supp.3d 20, 34 (D.D.C. 2015) (emphasis added) (citing Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011), and Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). " The mere assertion that the police officer was acting . . . pursuant to the policies of [the municipality] is not specific enough to withstand dismissal" where the Plaintiff " fail[s] to allege that his claimed constitutional harm was caused by a policy statement, ordinance, regulation, or decision promulgated or adopted by" the municipality. Miller v. Barry, 698 F.2d 1259, 1260, 225 U.S.App.D.C. 407 (D.C. Cir. 1983) ( per curiam) (affirming motion to dismiss) (internal quotation marks and citation omitted). Put another way, the " official policy must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983." Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (internal quotation marks and citation omitted).

         As the Supreme Court has explained, a pattern or policy " includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 131 S.Ct. at 1359. A plaintiff may also allege that the municipality demonstrated deliberate indifference to a risk of constitutional violations, resulting in those transgressions. See Baker v. District of Columbia,

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326 F.3d 1302, 1306, 356 U.S.App.D.C. 47 (D.C. Cir. 2003); see also Costello v. District of Columbia, 826 F.Supp.2d 221, 224 (D.D.C. 2011) (explaining that in order to state claim for Monell liability against the District, a plaintiff must allege that municipality (1) explicitly adopted policy that caused constitutional violation, (2) knowingly ignored practice that was consistent enough to constitute custom, or (3) failed to respond to a ...

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