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Thorp v. District of Columbia

United States District Court, District of Columbia

May 24, 2018

MARK THORP, Plaintiff,
v.
THE DISTRICT OF COLUMBIA, et al., Defendants.

          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 ...


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