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Richards v. Metropolitan Police Department Officer Jennifer Gelsomino

United States District Court, District of Columbia

March 3, 2017

RUTH E. RICHARDS, Plaintiff,


          JOHN D. BATES United States District Judge.

         In this 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 be denied.


         The 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.

         The 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. ¶ 36.

         After 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.

         That 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. Id.

         Gelsomino 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.


         In 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 marks omitted).


         The 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] at 9.

         Federal 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).

         Richards' 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 ...

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