United States District Court, District of Columbia
MARC S. BARNES, d/b/a PARK AT 14TH, Plaintiff,
DISTRICT OF COLUMBIA, et al, Defendants.
A. HOWELL CHIEF JUDGE.
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.
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.
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.
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.
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.
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."
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.
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. ¶¶
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.
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.
Motion to Dismiss ...