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Barnes v. District of Columbia

United States District Court, District of Columbia

March 3, 2017

MARC S. BARNES, d/b/a PARK AT 14TH, Plaintiff,
DISTRICT OF COLUMBIA, et al, Defendants.



         The plaintiff, Marc S. Barnes, brought this lawsuit against the defendants, the District of Columbia (the "District") and D.C. Metropolitan Police Department ("MPD") Sergeant Jonathan Clingerman, alleging violations of his constitutional and common law rights. See Compl., ECF No. 1. The plaintiffs claims arise from his arrest and prosecution for second-degree theft after a would-be patron at the plaintiff s night club accused the plaintiff of confiscating and retaining her identification. See First Amended Complaint ("FAC") ¶¶ 43, 60-85, ECF No. 12. The defendants have moved to dismiss the plaintiffs First Amended Complaint on the ground that the plaintiff has failed to state any claim to relief. See Defs.' Mot. Dismiss at 1, ECF No. 13. For the reasons set forth below, the plaintiffs federal claims will be dismissed, and the plaintiffs state claims will be dismissed without prejudice.

         I. BACKGROUND

         The facts below, taken from the First Amended Complaint, will be accepted as true for the purposes of the pending motion. At the time of the events underlying this action, the plaintiff operated The Park at 14th, a night club and restaurant located in the District of Columbia. FAC ¶¶ 4, 7. Under the laws of the District of Columbia, the plaintiff is required to "take measures to ensure that alcoholic beverages are not sold or consumed by minors, " "provide a safe and secure environment for the public, " and "avert conditions that cause a public nuisance or breach of the peace." Id. ¶ 7.

         Shortly after midnight on August 8, 2014, a group of three people attempted to enter the plaintiffs night club, where a doorman required them to "present a valid form of identification." Id. ¶¶ 8-9. As to one of these three would-be entrants ("Patron 1"), the doorman determined that the photo on her presented identification, a driver's license issued to Fiona Weeks by the Republic of Liberia, was not a photo of her. Id. ¶ 10. Failing to produce any other valid form of identification, Patron 1 was denied entrance. Id. ¶ 11. After "several unsuccessful attempts to bribe the doorman" into letting Patron 1 into the club, the group left without requesting the return of the license. Id. ¶¶ 13-14.

         Then, on or about August 10, 2014, Patron 1 returned to the plaintiffs night club, along with two new companions, believed to be Vinise Weeks and Fiona Weeks. Id. ¶¶ 15, 39. The three women entered the club, at which time a manager at the club recognized Patron 1 from two days earlier and "immediately instructed security to confirm that [Patron 1] had gained lawful entry to the club." Id. ¶¶ 16-17. Patron 1 produced a residential permit issued to Fiona Weeks by the Republic of Liberia, and security personnel determined that the photo was not a photo of Patron 1. Id. ¶¶ 19-20. Patron 1 was not able to produce another form of identification when asked and was then asked to leave the club, which she did, without requesting the return of the permit. Id. ¶¶ 21-22.

         According to the plaintiff, security personnel also asked Vinise and Fiona Weeks to leave because they "were complicit in helping [an] underage female gain unlawful entry into the club." Id. ¶ 24. The two "caused a disturbance and refused to leave the club, " and the plaintiff was summoned to address this disturbance. Id. ¶¶ 25-26. As the disturbance then escalated, the plaintiff "requested assistance from Officer Gonzalez, a member of his security team, " and a member of the MPD detailed to the club that evening. Id. ¶¶ 27-29. The plaintiff explained to the two women that "they had been asked to leave the club because .. . they participated in an unlawful act that caused an underage person to gain unlawful entry to a night club" and rejected their pleas to remain in the club. Id. ¶¶ 30-32. When Fiona Weeks demanded the return of her permit, which had been confiscated from Patron 1, the plaintiff refused, advising Fiona Weeks that the permit "would be returned to the issuing authority to ensure that it would be returned to the true owner" in conformity with "the club's policy in handling fraudulent uses of valid forms of ID." Id. ¶¶ 33-34. After exchanging harsh words with the plaintiff and Officer Gonzalez, the two women left the area. Id. ¶¶ 35-37.

         One month later, on or about September 10, 2014, two officers from the MPD arrived at the plaintiffs night club and asked the plaintiff for the identification belonging to Fiona Weeks, explaining that she had "filed a claim stating that her ID was taken from her by [the] plaintiff and [the] plaintiff refused to return the ID to her because he thought the ID was fake." Id. ¶ 43. The plaintiff told the officers that the permit was no longer at the club because the club "does not store 'lost and found' items beyond two weeks." Id. ¶¶ 44-45. The plaintiff also told the officers that "Fiona Weeks had knowingly and willfully given the [p]ermit to [an] underage female to facilitate [the latter's] illegal entry" to the club. Id. ¶¶ 48-49. The plaintiff further explained that the Permit "was confiscated only to avoid its further use in fraudulent activity." Id. ¶ 50. The plaintiff also assured the officers "that the authenticity of the Permit as a valid form of ID was never questioned by the [club] as alleged by Fiona Weeks." Id. In response, the officers told the plaintiff that "he had no legal right to confiscate or shred any form of identification even where the ID is clearly fake or being used as ID by someone other than the true owner" and directed the plaintiff to "involve the MPD when confronted with incidents of identity theft and fraud." Id. ¶ 51. The plaintiff told the officers that he had in fact requested assistance from Officer Gonzalez at one point during the events related to the confiscation of the permit. Id. ¶ 52. Nevertheless, the officers reported that the plaintiff was "illegally confiscating and destroying his patrons IDs." Id.

         On October 28, 2014, almost three months after the plaintiffs interaction with Fiona Weeks at the club, defendant Sergeant Clingerman executed an affidavit in support of an arrest warrant for the plaintiff, and that same day, the plaintiff "was notified that an arrest warrant had been issued [by a magistrate] charging him with theft of property belonging to Fiona Weeks." Id. ¶¶ 60, 74. Prior to preparing the arrest warrant application, the plaintiff concedes that Sergeant Clingerman "spoke directly with the plaintiff, " during which conversation the plaintiff told Sergeant Clingerman that the identification document in question "was not taken from Fiona Weeks, " "had been used fraudulently by an underage young woman attempting to gain entry into [the plaintiffs] place of business, " "was confiscated from the young woman only to avoid its further use in fraudulent activity, " and that the "young woman did not object to the confiscation of the false ID, " "Fiona Weeks had provided the fraudulent ID to the young woman" and an "MPD police officer worked at the plaintiffs place of business and was involved when the subject ID was confiscated." Id. ¶ 141. The plaintiff alleges, on information and belief, that the affidavit was executed "in retaliation of a complaint previously filed by [the] plaintiff against two of [Sergeant Clingerman's] fellow officers, " and that Sergeant Clingerman "orally expressed his disdain for [the plaintiff] to various members of the MPD" before signing the Affidavit. Id. ¶¶ 67-68.

         On or about October 31, 2014, the plaintiff was arrested on charges of second-degree theft and destruction of property in violation of DC. Code § 22-3211, id. ¶ 77, when he "turned himself into the MPD, " id. ¶ 76. After being "placed in handcuffs" and "detained for more than 12 hours, " the plaintiff was released and ordered to report weekly to Pretrial Services Agency pending his trial date. Id. ¶ 79. The plaintiff complains that at Pretrial Services, he "was treated as a common criminal and subjected to public ridicule." Id. ¶ 81. A status hearing for the plaintiffs case was scheduled on November 24, 2014, but before that date, on November 21, 2014, the prosecutor entered a nolle prosequi for all criminal charges against the plaintiff, voluntarily discontinuing the prosecution. Id. ¶¶ 82-83.

         According to the plaintiff, the MPD has consistently denied his requests for assistance in handling the identity theft and fraud he encounters as the owner and operator of a night club. Id. ¶ 53. Specifically, the plaintiff avers that the MPD "has never attempted to investigate cases of identity theft at the Park, nor has it sought the prosecution of any person(s) who have attempted or succeeded in entering the [Park] unlawfully, " id. ¶ 57, despite the plaintiffs efforts "on a number of occasions personally [bringing] these problems to the attention of MPD supervisors, including the Commanding Officers of the Second District, [but] to no avail, " id. ¶ 106. As a result, the plaintiff "faces daily the risk of losing his license to operate due to MPD's refusal to intervene in efforts to deter or even stop underage persons from attempting to enter the club illegally." Id. ¶ 58. Instead, prior to the events underlying the present action, the plaintiff states that, on at least one occasion, a police officer of the MPD "ordered [the] plaintiff to return an [identification ("ID")] to [a] potential patron even while acknowledging that the ID did not belong to the presenter." Id. ¶ 54.

         On November 20, 2015, the plaintiff filed this lawsuit against the defendants, alleging violations of his constitutional and common law rights, Compl. at 1, and subsequently filed an amended complaint, which asserted eight counts: false arrest, in violation of the Fourth Amendment, under 42 U.S.C. § 1983, which provides a private right of action for violations of constitutional rights caused by persons acting under color of law, against defendant Sergeant Clingerman (Count I); malicious prosecution, in violation of the Fourth Amendment, under 42 U.S.C. § 1983, against defendant Sergeant Clingerman (Count II); deliberate indifference under 42 U.S.C. § 1983, against defendant District of Columbia (Count III); false arrest under state law against both defendants (Count IV); malicious prosecution under state law against both defendants (Count V); intentional infliction of emotional distress under state law against both defendants (Count VI); abuse of process under state law against both defendants (Count VII); and defamation per se under state law against both defendants (Count VIII). See generally FAC. The defendants' motion to dismiss the First Amended Complaint for failure to state a claim is now ripe for consideration.[1]


         A. Motion to Dismiss ...

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