MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Emily
Dickinson once said of dogs, “They are better than
[human] beings because they know but do not tell.”
Unfortunately for Plaintiff Mark Thorp, the only neutral
witness in this case is his Doberman pinscher named Vaughn.
According to Defendants, two officers with the Metropolitan
Police Department observed Thorp beat his dog, necessitating
a rescue mission inside his home. Plaintiff vigorously
disputes such accusation, alleging that the officers
fabricated all evidence of animal cruelty, executed not one
but two faulty warrants of his home, arrested him without
probable cause, illegally seized cash and other property,
and, to add salt to the wound, needlessly impounded the
Doberman. Seeking relief for such grievances, he filed this
civil suit against the District of Columbia and Lieutenant
Ramey Kyle, the commander who executed the search warrants.
So long
as Vaughn stays silent, the Court may never know precisely
what unfolded that day. As it turns out, however, these
factual disputes matter not for purposes of this action. Even
construing the facts in the light most favorable to
Plaintiff, the Court finds that summary judgment in favor of
Defendants is appropriate.
I.
Background
The
Court has previously detailed the background behind
Plaintiff's suit. See Thorp v. Dist. of
Columbia, 142 F.Supp.3d 132, 135-136 (D.D.C. 2015). It
therefore limits the discussion here to the contested
searches and seizures of February 4, 2015. As Defendants
ultimately prevail, the Court recounts these facts in the
light most favorable to Plaintiff. This is no easy task,
however, as Thorp does not attach copies of the depositions
to which he cites. The Court will therefore rely, when
available, on the excerpts of those depositions provided by
Defendants.
On
February 4, two officers in the MPD's Vice Unit -
Fredrick Onoja and William Rapp - were stationed in a church
parking lot near Thorp's home at 1029 16th Street N.E.
See Def. MSJ, Exh. 3 (Deposition of William Rapp) at
32:1-7; Exh. 4 (Deposition of Fredrick Onoja) at 43:12-21. At
approximately 7:35 a.m., the officers purportedly saw and
heard Plaintiff “forcefully strike” his dog, a
17-month Doberman pinscher. Compare Def. MSJ, Exh. 1
(First Search Warrant Aff.) at 1; Onoja Dep. at 43:6-11
(“Q: You saw Mr. Thorpe [sic] hit his dog that
morning? A: Yes.”); Rapp Dep. at 60:3-9, 62:22
(“I saw Mr. Thorp hit the dog.”), with
ECF No. 101-1 (Pl. Response to Def. SMF), ¶ 2
(questioning whether officers were in position to observe
such behavior). Thorp then took the dog inside the house and
did not return, id., ¶ 4, denying Officers
Onoja's and Rapp's requests to speak with him.
Id., ¶¶ 5, 6.
Those
officers then reported - falsely, according to Thorp - the
incident to Washington Humane Society Law Enforcement Officer
Ann Russell, who in turn applied to the D.C. Superior Court
for a search warrant of Plaintiff's home. See
First Search Warrant Aff. at 2; id., Exh. 10
(Deposition of Ann Russell) at 37:10-22, 39:11-14, 40:2-12,
63:14-19. Judge Ramsey Johnson approved the application,
authorizing a search for “[a]nimals physically abused
(dead or alive, born or unborn, above ground or below)[, ]
bowls, water bowls, or any other evidence of animal
cruelty/neglect” that evidenced “commission of a
crime in violation of Title 22, Section 1001, D.C.
[Code].” First Search Warrant.
At that
point, Lieutenant Kyle - the sole officer sued in his
individual capacity - entered the picture. According to
Thorp, Kyle previously “had a sexual relationship with
[] Plaintiff's ex-girlfriend.” ECF No. 94-1 (Pl.
SMF), ¶ 37. He also, coincidentally or not, commanded a
team of thirteen officers executing the search warrant.
See ECF No. 93 (Pl. MSJ) at 7, 11 (citing Russell
Dep. at 41-42). The unit arrived at roughly 3:00 p.m., and
within ten minutes, the humane officers had secured the dog.
Id., Exh. PP (photograph). Both Russell and fellow
Humane Law Enforcement Officer Daniel D'Eramo observed
the dog was uninjured and in good health, see
Russell Dep. at 83:1-6; Def. MSJ, Exh. 11 (Deposition of
Daniel D'Eramo) at 102:15-16; 114:6-11, and neither
discovered additional evidence of animal cruelty.
See Russell Dep. at 100:7-15; D'Eramo Dep. at
139:3-4.
Nevertheless,
the search persisted. Plaintiff alleges that Kyle's true
motive was to uncover illegal drugs in the home, as the
“local neighborhood boss”- i.e., Kathy
Henderson, an Advisory Neighborhood Commissioner - had
apparently long targeted him as a suspected drug dealer.
See Pl. SMF, ¶ 43; Pl. Reply at 40. Whether
spurred by political pressure from Henderson or, perhaps,
personal animosity, Thorp believes “Kyle knew exactly
what he wanted to find when he smashed down the doors of the
Plaintiff's home and it had nothing to do with spurious
allegations of animal cruelty.” Pl. MSJ at 43. In that
vein, Kyle continued searching “closed containers,
” including the freezer, well after the dog was safely
outside. See Pl. SMF, ¶ 67; see also
Def. MSJ, Exh. 5 (Deposition of Andrew Gamm) at 124:5-11
(noting that Kyle opened the closed freezer door). Inside the
freezer, the Lieutenant found two unmarked zip-top bags full
of capsules, which he says he immediately recognized as
illicit substances. See Def. MSJ, Exh. 12
(Deposition of Ramey Kyle) at 115-18. In a subsequent field
test, the pills reacted positively for amphetamines.
Id., Exh. 2 (Second Search Warrant Aff.) at 2.
Thorp
insists that he had a prescription for the pharmaceuticals
and that Kyle “was present in . . . [a] room where the
prescription bottles were in plain view.” Pl. SMF,
¶ 77 (citing Kyle Dep. at 126-127). The officer
nonetheless called MPD Sergeant Paul Hong to report his
discovery, never mentioning said prescriptions. See
Kyle Dep. at 118:16-120:5; Second Search Warrant Aff. at 2.
Another officer within the unit then applied for a second
search warrant for Thorp's home, this one for drugs and
related materials, including suspected “cash
proceeds” concealed there in “[v]iolation of D.C.
code 48-904.01, ” id., which prohibits
“knowingly or intentionally . . . possess[ing], with
intent to . . . distribute, a controlled substance.”
D.C. Superior Court Judge Geoffrey Alprin approved the
warrant. Id.
After
this second search - which Thorp deems a “raid” -
officers found approximately 4.1 grams of crystalized
substances; a total of 100 capsules; a green box containing
one-inch zip-top bags, each bearing numerous Batman logos;
and drug paraphernalia. See Def. MSJ, Exh. 22 (Afari
Crime Scene Report) at 2-6; Exh. 18 (Gamm Crime Scene Report)
at 5-7; Exh. 23 (Arrest Record) at 2; Exh. 24 (Property
Seizure Report: Drugs); Exh. 20 (Deposition of Jacqueline
Gerrish) at 73:17-75:1 (noting MDMA - commonly known as
ecstasy - is “sold on the street” in
“ziplocks with Batman logos on them.”). Thorp was
then arrested, allegedly at Kyle's behest, see
Pl. RSMF, ¶ 32, and charged with animal cruelty and
possession of illegal drugs. See United States v.
Thorp, No. 2015-CF2-001682. Officers also seized $53,
426 in cash from the premises, and Russell impounded
Plaintiff's Doberman. See Pl. RSMF, ¶¶
31, 33. Although a laboratory test later showed the pills
seized were methylenedioxy-methamphetamine (MDMA) and
etholyne, see Def. MSJ, Exh. 21 (Drug Test Results),
“the United States Attorney abandoned the criminal case
against” Thorp. See Pl. SMF, ¶ 114. On
May 22, 2015, the D.C. Superior Court dismissed all criminal
charges against him related to the February 4 search of his
home. Id.
Seeking
redress for these injuries, Plaintiff brought this suit
against the District and Kyle. See Thorp, 142
F.Supp.3d at 136-37. He filed his First Amended Complaint on
February 15, 2015, see ECF No. 12, and added a
Second Amended Complaint on July 13, 2015. See ECF
No. 22. That latter Complaint, which remains the operative
pleading in this case, originally advanced ten separate
counts under 42 U.S.C. §§ 1983, 1985, and the
common law of the District of Columbia. See ECF No.
22 (Second Amended Complaint), ¶¶ 81-133. After
Defendants subsequently moved to dismiss, see ECF
Nos. 23, 24, 26, the Court winnowed the claims to the
following: Counts II and III against Kyle only, for limited
Fourth Amendment violations; Count IV against the District
only, under the D.C. common law of negligent supervision and
retention; and Counts VIII and IX, consolidated into a single
abuse-of-process claim, against Kyle on a direct-liability
theory and against the District on a vicarious-liability
theory. See Thorp, 142 F.Supp.3d at 149.
After
nearly 19 months of discovery, both parties have filed
Cross-Motions for Summary Judgment. Those Motions are now
ripe.
II.
Legal Standard
“When
faced with cross-motions for summary judgment, th[is C]ourt
must review each motion separately on its own merits
‘to determine whether either of the parties deserves
judgment as a matter of law.'” Family Trust of
Mass., Inc. v. United States, 892 F.Supp.2d 149, 154
(D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)) (alteration in original). If
the Court determines that one party is not entitled to
summary judgment, it “changes tack on the cross motion
and gives the unsuccessful movant ‘all of the favorable
factual inferences that it has just given to the movant's
opponent.'” Nucap Indus., Inc. v. Robert Bosch
LLC, No. 15-2207, 2017 WL 1197104, at *6 (N.D. Ill. Mar.
31, 2017) (quoting R.J. Corman Derailment Servs., LLC v.
Int'l Union of Operating Engrs., Local Union 150,
335 F.3d 643, 647-48 (7th Cir. 2003)).
Summary
judgment is appropriate “only if one of the moving
parties is entitled to judgment as a matter of law upon
material facts that are not genuinely disputed.”
Airlie Foundation v. IRS, 283 F.Supp.2d 58, 61
(D.D.C. 2003) (citing Rhoads v. McFerran, 517 F.2d
66, 67 (2d Cir. 1975)); see also Fed.R.Civ.P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); CEI Wash. Bureau, Inc. v. DOJ, 469
F.3d 126, 129 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb v. Powell, 433
F.3d 889, 895 (D.C. Cir. 2006). A dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1).
In
considering a motion for summary judgment, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [its] favor.”
Liberty Lobby, 477 U.S. at 255; see also Mastro
v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006). The Court
must “eschew making credibility determinations or
weighing the evidence.” Czekalski v. Peters,
475 F.3d 360, 363 (D.C. Cir. 2007). To defeat summary
judgment, however, an opposition must be supported by
affidavits, declarations, or other competent evidence,
setting forth specific facts showing that there is a genuine
issue for trial. See Fed.R.Civ.P. 56(e); Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
non-movant is required to provide evidence that would permit
a reasonable jury to find in its favor. Laningham v.
Navy, 813 F.2d 1236, 1243 (D.C. Cir. 1987). If the
non-movant's evidence is “merely colorable”
or “not significantly probative, ” summary
judgment may be granted. Liberty Lobby, 477 U.S. at
249-50.
III.
Analysis
Although
every dog may have its day, not every plaintiff gets a trial.
To pursue a Fourth Amendment claim under section 1983, he
must satisfy two criteria. First, he must establish a jury
question on a predicate constitutional violation, such as an
unreasonable search or an unreasonable seizure. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Even
should he succeed, “the protection of qualified
immunity is available if ‘a reasonable officer could
have believed that [his or her actions were] lawful, in light
of clearly established law and the information the officers
possessed.'” Youngbey v. March, 676 F.3d
1114, 1117 (D.C. Cir. 2012) (quoting Wilson v.
Layne, 526 U.S. 603, 615 (1999)). One “important
purpose” of the doctrine is protecting
“officials, not simply from liability, but also from
standing trial.” Johnson v. Jones, 515 U.S.
304, 312 (1995).
In this
case, Thorp is not short on allegations, but each ultimately
falters on one of those two prongs. The Court will therefore
dismiss Counts II and III. It then briefly considers - and
rejects - Plaintiff's two remaining state-law claims.
A.
Counts II and III: “Fourth Amendment
Deprivation”
The
Court begins with the crux of this dispute: whether Kyle
violated the Fourth Amendment by his search of
Plaintiff's home and seizure of his property. Before
diving in, the Court stresses the limited scope of the counts
before it. Thorp initially brought Fourth Amendment claims
against both Kyle and the District. To hold a municipality
liable under section 1983, however, a plaintiff must allege
“that [the city] maintained a policy or custom that
caused the violation of his or her constitutional
rights.” Thorp, 142 F.Supp.3d at 138 (quoting
Kenley v. Dist. of Columbia, 83 F.Supp.3d 20, 34
(D.D.C. 2015)) (emphasis omitted). In its previous Opinion,
the Court held that there were no such allegations here, such
that neither Count II nor III could proceed against the city.
Id. at 139. The only remaining Fourth Amendment
claims were against Kyle, in his individual capacity, and
Plaintiff thus must link any constitutional violation to him.
Id.
Since
the last Opinion, Thorp's Fourth Amendment claims seem to
have multiplied. To provide him a full hearing, the Court
will nonetheless read his Complaint generously and divide
Counts II and III into the following potential
“sub-claims, ” id. at 141: (1) the
original animal-cruelty warrant application was deficient;
(2) Kyle's reliance on the warrant was improper; (3)
Kyle's search exceeded the warrant's scope; (4) the
second warrant, which was procured on the basis of
amphetamines discovered in Thorp's freezer, was invalid;
(5) the warrantless field test of said amphetamines was
improper; (6) Thorp's arrest was without probable cause;
(7) the execution of each warrant unnecessarily caused
property damage, and, finally, (8) officers unlawfully seized
more than $53, 000 in cash from the apartment. It will
address each in turn.
1.
Application for First Warrant
Plaintiff
initially criticizes the MPD's first warrant as
“obviously deficient.” Pl. MSJ at 7. Previously,
the Court allowed this claim to proceed because the
“Complaint clearly allege[d] that the ‘warrant
was made at the behest of' Kyle.”
Thorp, 142 F.Supp.3d at 141-42 (emphasis added). It
also rejected any qualified-immunity defense, as Thorp had
alleged that “Kyle used false information to obtain the
animal cruelty search warrant s[o] that he could search the
Plaintiff's home for illegal drugs, despite having no
probable cause to believe illegal drugs would be found in the
...