United States District Court, D. Columbia
[Copyrighted Material Omitted]
MARK THORP, Plaintiff: Matthew August LeFande, MATTHEW AUGUST
LEFANDE ATTORNEY AT LAW PLLC, Arlington, VA.
DISTRICT OF COLUMBIA, RAMEY JOSEPH KYLE, Defendants: Keith
David Parsons, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL
FOR THE DISTRICT OF COLUMBIA, Washington, DC.
E. BOASBERG, United States District Judge.
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.
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. )
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
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.
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.
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).
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.
redress for these injuries and the purportedly unlawful
events that produced them, Plaintiff brought the instant
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.
now move to dismiss the Second Amended Complaint, and Thorp
both opposes that Motion and also moves for Partial Summary
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).
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);
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).
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)).
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
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.
" [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).
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
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 ...