United States District Court, District of Columbia
Emmet G. Sullivan United States District Court Judge.
On July 1, 2013, Plaintiff Michael Dickey (“Mr. Dickey”), an employee of the U.S. Department of Transportation (“DOT”), drove his car into the DOT’s parking garage at 1200 New Jersey Ave. SE, Washington, D.C. Compl., Docket No. 1 at ¶ 6. Mr. Dickey alleges that a bicyclist was in his blind spot as he pulled into his parking spot. Id. at ¶ 7. The cyclist was forced to stop abruptly. Id. Mr. Dickey and the cyclist engaged in an altercation, causing Defendant Kurt Alexander (“Officer Alexander”), a Federal Protective Services officer, and his partner, Gary Brzozwald, an inspector, to arrive at the scene. Id. at ¶ 8. After interviews with the altercating parties, Mr. Dickey was placed under arrest for simple assault. Id. ¶ 9-12. During his arrest, Mr. Dickey alleges that Officer Alexander pushed and pulled him, tearing one of the belt loops on his pants. Id. ¶ 12. Mr. Dickey further alleges that Officer Alexander “used his fingers to manipulate and move Mr. Dickey’s genitals and penis . . . .” Id. ¶ 13. Mr. Dickey alleges that his genitals and penis were “fondled” six times by Officer Alexander during his search of Mr. Dickey incident to arrest, three times when Officer Alexander used kevlar gloves, and three times when Officer Alexander used latex gloves. Id. at ¶ 21-23.
Mr. Dickey alleges two counts against the United States and Officer Alexander in his individual capacity: excessive force and unreasonable search and seizure in violation of the Fourth Amendment (Count I); and assault, battery and intentional infliction of emotional distress under the Federal Tort Claims Act (“FTCA”) (Count II). Id. at ¶¶ 24-39. Defendants move to dismiss Mr. Dickey’s complaint for lack of subject matter jurisdiction and failure to state a claim. Defs.’ Mem. Supp. Mot. Dismiss, Docket No. 7-1. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, Defendants’ Motion is GRANTED in part and DENIED in part.
I. 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 (D.C. Cir. 2002). The pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading standard does not require detailed factual allegations, but should be “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. Naked assertions without factual enhancements or formulaic recitations of the elements of a cause of action will not suffice. Id. Rather, to survive a motion to dismiss, a complaint “must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. Plausibility entails that the plaintiff has pled factual content that is not merely consistent with liability but allows the Court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id.
In considering a 12(b)(6) motion, the Court should liberally view the complaint in the plaintiff’s favor, accepting all factual allegations as true, and giving the plaintiff the benefit of all inferences that can be drawn therefrom. Redding v. Edwards, 569 F.Supp.2d 129, 131 (D.D.C. 2008) (citing Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
A. The Qualified Immunity Doctrine
A plaintiff may bring suit against federal officials in their individual capacity for alleged constitutional violations. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). However, qualified immunity protects government officials from civil liability where their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004). At the motion to dismiss stage, a plaintiff must allege sufficient facts to establish that the defendants are not entitled to qualified immunity. Patterson v. United States, 999 F.Supp.2d 300, 311 (D.D.C. 2013) (internal citation omitted). The defendant bears the burden of pleading and proving qualified immunity. Id.
As established by the Supreme Court, “the two pertinent questions in determining whether qualified immunity applies are (1) whether a constitutional right would have been violated on the facts alleged; and (2) whether the right was clearly established at the time of the violation.” Shaw v. District of Columbia, Case No. 12-0538, 2013 WL 1943032, at *4 (D.D.C. May 13, 2013) (quoting Saucier v. Katz, 533 U.S. 194 at 201 (2001)). In sum, the facts alleged by a plaintiff must establish that the official violated a right protected by the constitution, and precedent must be sufficiently well established that a reasonable officer would have understood prior to acting that his conduct violates that right.
Here, both of Mr. Dickey’s alleged constitutional violations--unreasonable search and excessive force--impinge on the Fourth Amendment, which guarantees the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. Each alleged claim will be analyzed below.
i. The facts alleged by Mr. Dickey state a claim for an unreasonable search in violation of his clearly established rights under the Fourth Amendment.
Officer Alexander argues that the search of Mr. Dickey was permitted under the Fourth Amendment because it was incident to his arrest. Defs.’ Mem. Supp., Docket No. 7 at 8-9. Mr. Dickey argues that the circumstances of his arrest did not provide Officer Alexander any basis to “perpetrate a sexual assault on him” by manipulating his penis and genitalia six times. Pl.’s Mem. Opp., Docket No. 9 at 8.
The Fourth Amendment generally requires that law enforcement have “probable cause for conducting a search.” U.S. v. Scott, 987 A.2d 1180, 1195 (D.C. Cir. 2010). However, a critical exception to this general rule are searches ...