United States District Court, District of Columbia
RUTH E. RICHARDS, Plaintiff,
METROPOLITAN POLICE DEPARTMENT OFFICER JENNIFER GELSOMINO, Defendant.
MEMORANDUM OPINION & ORDER
D. BATES United States District Judge.
action brought pursuant to 42 U.S.C. § 1983, plaintiff
Ruth Richards alleges that she was arrested by Metropolitan
Police Department Officer Jennifer Gelsomino without probable
cause and because of her race and national origin, in
violation of the Fourth and Fifth Amendments . Gelsomino has
moved to dismiss, arguing that she is entitled to qualified
immunity from Richards' Fourth Amendment claim and that
Richards' complaint fails to state a claim under the
Fifth Amendment. For the reasons explained below, the Court
disagrees. Gelsomino's motion to dismiss will therefore
following account is taken from Ms. Richards' complaint.
Ms. Richards is a 56-year old United States citizen. She is
black, was born in Jamaica, and speaks with a Jamaican
accent. Compl. [ECF No. 1] ¶¶ 13, 20. In May 2013,
she was walking to a friend's house when she saw her
ex-husband, George Richards, driving down the street.
Id. ¶ 16. Mr. Richards pulled his car alongside
Ms. Richards and got out. Id. ¶ 17. So did a
passenger, Sharniesha Grady, and Ms. Grady's child.
Id. Ms . Ric hards thought that Ms. Grady appeared
to be more than 30 years younger than Mr. Richards.
Id. According to the complaint, Mr. Richards then
“assaulted Ms. Richards in the face, and the two had a
heated argument.” Id. ¶ 18. A neighbor
witnessed the assault, but was unable to hear the argument.
Id. ¶ 19. After telling Mr. Richards that she
would call the police, Ms. Richards left the intersection
where the alleged assault occurred and entered the house of
Eva Wood, who is Mr. Richards' mother. Id.
¶ 21. Mr. Richards, Ms. Grady, and Ms. Grady's child
entered Grady's house, which is next door to Ms.
Wood's. Id. ¶ 22. From her home, Ms. Grady
placed a number of calls to 911. Id. ¶ 24.
Officer Gelsomino and another officer soon arrived in
separate police cars. Id. ¶ 23. Gelsomino
exited her car and went to speak wit h Mr. Richards and Ms.
Grady. Id. ¶¶ 23, 27. The other officer
spoke with Ms. Richards and Ms. Wood, who informed the
officer about the alleged assault and other occasions on
which Mr. Ric hards had allegedly be have d violently .
Id. ¶ 26.
situation escalated, however, as Gelsomino approached the
porch where Ms. Richards and Ms. Woods were sitting.
Requesting that Ms. Richards step off the porch, Gelsomino
asked her: “Where were you born?” Id.
¶ 28. Ms. Richards responded “I am an American
citizen.” Id. Unsatisfied with Ms.
Richards' answer, Gelsomino repeated her question.
Id. When Ms. Richards responded that she was born in
Jamaica, Gelsomino placed her in handcuffs and under arrest
without asking any further questions. Id. ¶ 29.
Both Ms. Richards and Ms. Wood asked why Ms. Richards was
being arrested; Ms. Richards pointed out that she had been
the victim of an assault by her ex-husband. Id.
¶ 30. But Gelsomino s t ill provided no explanation for
the arrest. Id. Instead, she asked whether there
were any witnesses to the alleged assault. Id.
¶ 31. Told that there were, just two houses down the
street, Gelsomino refused to seek them out, saying
“I'm not going down there.” Id.
¶ 32. As Gelsomino was leading Ms. Richards to the
police car, however, one such witness came to the scene.
Id. ¶ 32. This witness indicated that she had
seen the altercation and that Ms. Richards had indeed been
assaulted by her ex-husband. Id. In light of this
new information, the officers placed Mr. Richards under
arrest as well but did not release Ms. Richards. Id.
Ms. Richards was held at the police station for 19 hours,
without being offered food, provided with her prescription
medications, or allowed to report her arrestto her attorney
or family. See Id. ¶¶ 3, 33-37.
She was ultimately released-without being charged or told why
she had been arrested in the first place. Id. ¶
being released, Ms. Richards filed a formal complaint with
the Office of Police Complaints (OPC). Id. ¶
38. The OPC process culminated with a written decision by an
independent complaint examiner, who found in favor of Ms.
Richards on her harassment and discrimination allegations.
See Id. ¶¶ 39-40. Specifically,
the examiner concluded that Gelsomino lacked probable cause
to believe that Ms. Richards had committed an intra-family
offense involving a threat, see id. ¶ 42;
see also D.C. Code § 16-1031(a)(2); that
Gelsomino failed to take the procedural steps necessary to
support a warrantless arrest, see Id. ¶ 43; and
that Gelsomino discriminated against Ms. Richards based on
her national origin, see Id. ¶ 45. Ms. Richards
quotes these conclusions in her complaint in this case.
complaint alleges that Gelsomino, while acting under color of
state law, violated the Fourth and Fifth Amendments by
arresting Ms. Richards without probable cause and because of
her race and national origin. See 42 U.S.C. §
1983; Compl. ¶¶ 56, 69. Richards (hereinafter
referring to Ms. Richards, unless otherwise specified) has
also attached the examiner's full merits decision to her
complaint. See OPC Merits Determination [ECF No.
1-4]. The examiner's decision, however, includes some
factual information that Richards' complaint does not.
For example, the examiner found that Grady had reported to
the 911 operator that Richards "was talking loudly and
making threats in front of her neighbors." id.
at 2. The examiner also noted Grady's allegation that, in
connection with the altercation at the center of this case,
Richards had "approached [Grady] in front of her home
aggressively and said 'Bitch, I'll smack
you.'" Id. According to the examiner,
Gelsomino included this statement in the arrest report.
now moves to dismiss. See Def's Mot. to Dismiss [ECF No.
14]. Relying on Grady's allegations as summarized in the
examiner's decision, Gelsomino argues that she is
entitled to qualified immunity from Richards' Fourth
Amendment claim because the arrest was supported by probable
cause. She also argues that Richards' complaint fails to
state a claim under the Fifth Amendment.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must presume the truth of a
complaint's factual allegations, although it is "not
bound to accept as true a legal conclusion couched as a
factual allegation." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks omitted). The court then asks whether the facts alleged
suffice "to state a claim to relief that is plausible on
its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). On a motion to
dismiss, the court may generally consider "facts alleged
in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the
court] may take judicial notice." Mpoy v. Rhee,
758 F.3d 285, 291 n.1 (D.C. Cir. 2014) (internal quotation
first task in this case is to identify the set of factual
allegations that must be taken as true for purposes of
Gelsomino's motion to dismiss. Gelsomino argues that, by
attaching the examiner's decision to her complaint,
Richards has incorporated all of its factual content into her
complaint, thus allowing the Court to accept all that as
true. See Def's Reply [ECF No. 17] at 1- 2. As a
result, Gelsomino argues, the Court should consider
Grady's account-that Richards "was talking loudly
and making threats, " including a threat to
"smack" Grady-as it is set out in the
examiner's decision. Richards, of course, disagrees. She
asks the Court to disregard these alleged statements for
present purposes, because she has "never asserted or
accepted" them as true. Pl.'s Opp'n [ECF No. 16]
Rule of Civil Procedure 10(c) permits a plaintiff to attach
an exhibit to her complaint, thus making the exhibit "a
part of the pleading for all purposes." But, as the D.C.
Circuit has recently observed, the "incorporation by
reference doctrine has limits." Banneker Ventures,
LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015).
Indeed, several circuits "have rejected the
'fantastic argument' that 'all facts contained in
any attachments to a complaint are automatically deemed facts
alleged as part of the complaint.'" Id.
(quoting Carroll v. Yates, 362 F.3d 984, 986 (7th
Cir. 2004)). "Rule 10(c) 'does not require a
plaintiff to adopt every word within the exhibits as true for
purposes of pleading simply because the documents were
attached to the complaint to support an alleged
fact.'" Id. (quoting N. Ind. Gun &
Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449,
454-56 (7th Cir. 1998)). When considering what facts to
accept as true, therefore, "it is necessary to consider
why a plaintiff attached the documents, who authored the
documents, and the reliability of the documents."
Id. at 412-13 (internal quotation marks omitted);
accord Goines v. Valley Comm. Servs. Bd, 822 F.3d
159, 167 (4th Cir. 2016).
complaint walks a fine line when using the examiner's
decision. On the one hand, she plainly wants to make the
Court aware of the examiner's conclusions, which she
believes "support" her constitutional claims.
Compl. ¶ 6. She also wants the Court to know that the
examiner reached her conclusions after a "full
investigation" of the facts, including conducting
interviews and gathering evidence. id. ¶ 5;
see alsoid. ¶¶ 39, 59, 72. But
that does not mean that Richards has implicitly adopted all
of the decision's factual content into her complaint.
Richards' view of the arrest, and her related
allegations, are the foundation of her complaint-"no
portion of any of [her] claims is dependent upon the truth of
any statements contained in" the examiner's
decision. Goines, 822 F.3d at 168. Richards comes
closest to relying on the decision's factual content when
she quotes sections referring to Grady's account of the
incident, including the alleged threats that Gelsomino now
seeks to rely on in support of a finding of probable cause.
See, e.g., Compl. ¶ 54 ("The OPC also
finds that 'the circumstantial evidence illustrates Ms.
Grady herself was not particularly concerned about the
words that had been uttered, such that Officer
Gelsomino's assessment of having probable cause ...