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Thorp v. District of Columbia

United States District Court, District of Columbia

June 22, 2018

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

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         For the last several years Plaintiff Mark Thorp has waged a lengthy legal battle against the District of Columbia over what he claims was an unlawful 2015 search of his home and arrest for drug and animal-cruelty charges. Although this Court recently granted summary judgment to the District, see Thorp v. D.C. (Thorp I), 2018 WL 2364291 (D.D.C. May 24, 2018), Thorp is not waving a white flag. Instead, on May 7, 2018, he filed a new suit against, inter alia, the city's lawyers, asserting a farrago of counts arising from the D.C. Office of Tax Revenue's issuance of tax summonses to twelve corporate entities affiliated with him and his nightclub business. Plaintiff contends that, rather than being issued for permissible civil purposes, these summonses are in fact part of a criminal investigation launched against him as retaliation for filing the prior suit.

         Framing the summonses as the latest fusillade in a comprehensive scheme to interfere with the prosecution of his earlier case, Thorp asserts that OTR is acting in bad faith and has gone far beyond the scope of its civil authority under D.C. Code § 47-4310. Plaintiff alleges that the summonses therefore violate his First, Fourth, Fifth, and Sixth Amendment rights, as well as constituting a conspiracy to deprive him of his civil rights, an abuse of process, and a violation of the Tax Equity and Fiscal Responsibility Act of 1982. Relying on his constitutional claims, Thorp has now moved for a preliminary injunction, asking this Court to enjoin the District from enforcing the OTR summonses.

         As it indicated at oral argument, the Court remains puzzled why Plaintiff has chosen to file a 37-page lawsuit in federal court instead of simply challenging OTR's summonses or its authority in the D.C. Superior Court. In any event, the Court concludes that such a pre-enforcement action challenging state tax administration is not a proper matter for the federal system. Under the doctrine of comity, Thorp's myriad claims regarding OTR's actions belong instead in Superior Court. This Court, consequently, concludes that Plaintiff cannot show a likelihood of success on the merits sufficient for a preliminary injunction to issue, as he cannot even show a likelihood that this Court should hear his case. The Court finds, additionally, that Thorp cannot demonstrate the requisite likelihood of irreparable harm for injunctive relief. Here, the OTR summonses at issue remain pending and unenforced. Plaintiff's parade of horribles regarding the impact of the records requests therefore is largely speculative, and his alleged injuries far from certain. As the Court thus concludes that Thorp's claims do not warrant the “extraordinary remedy” of a preliminary injunction, it will deny his Motion.

         I. Background

         In February 2015, Thorp filed suit against the District of Columbia and Metropolitan Police Department Lieutenant Ramey Kyle, alleging, inter alia, that the police illegally searched and seized his home and stole certain valuables. On May 24, 2018, this Court granted summary judgment for Defendants. See ECF No. 117, No. 15-195 (Order). The Court rejected Thorp's Fourth Amendment claims, as well as his false-arrest, abuse-of-process, and negligent-supervision counts. See Thorp I, 2018 WL 2364291, at *1, 13.

         On May 7, 2018, less than three weeks before the issuance of the Opinion in Thorp I, Plaintiff filed this suit against counsel for Defendants in that case - Assistant Attorneys General Conrad Risher and Michael Tilghman - OTR Agent Bruce Traina, and the District itself. This latest Complaint addresses a series of tax summonses for books and records related to various entities allegedly controlled by Thorp - summonses that he claims are in fact directly related to the proceedings in Thorp I. Plaintiff asserts in his Complaint that the summonses were improperly issued as part of a criminal investigation that was launched to retaliate against him for filing suit against the District and to prevent him from litigating the 2015 matter. Under this retaliation theory, Thorp brings a series of constitutional, statutory, and common-law claims.

         Specifically, he alleges in Count I that Defendants Traina and Risher violated his First Amendment rights by having “initiated and caused to be initiated new criminal investigation proceedings, ” which “are intended to punish and retaliate against the Plaintiff for his disclosures of governmental misconduct and his attempts to seek remedies through civil process.” Compl., ¶¶ 195-96. Such conduct, Plaintiff contends, “has deprived [him] of his right of redress and other forms of freedom of speech guaranteed by the First Amendment.” Id., ¶ 197.

         Thorp's second count also alleges a constitutional violation - namely, a Fifth Amendment due-process violation arising from Defendants' “unfounded and burdensome criminal investigation, ” which Thorp asserts is “being employed to harass [him]” and “to unlawfully pressure [him] to settle a collateral dispute.” Id., ¶¶ 207-211. His third count is similarly based on the Fifth Amendment, as he alleges that Defendant Tilghman violated his due-process rights when he “unlawfully interfered with the[] proceedings by making false statements regarding the availability of [Defendant] Risher to the Court's law clerk outside of any legal paper or official hearing.” Id., ¶ 220. This contention is seemingly based on an alleged April 2, 2018, conversation between Tilghman and a law clerk of this Court in which Thorp contends that Tilghman falsely stated that “Risher was on ‘scheduled leave'” when “Risher had specifically stated to the Plaintiff's attorney three days earlier that he would be in the office on April 2.” Id., ¶ 185. This “false statement, ” Plaintiff asserts, “was intended to thwart the Court's inquiry into the alleged illegal conduct by Risher and Traina.” Id., ¶¶ 185-86.

         Count IV of the Complaint moves on to the Fourth Amendment, alleging that “Defendant Traina is employing administrative summonses to conduct a criminal investigation” and that “[s]uch summonses for compulsory production of private papers are searches and seizures regulated under the Fourth Amendment.” Id., ¶¶ 227-39. Counts V and VI are similarly directed at the constitutionality of the OTR request, claiming that “[b]y employing administrative summonses to conduct a criminal investigation, ” Defendant Traina violated Thorp's Sixth Amendment “right to counsel in a criminal proceeding, ” id., ¶ 241, and that the summonses also “violate[] [his] right against compelled self-incrimination” under the Fifth Amendment. Id., ¶ 248.

         Count VII is brought under 42 U.S.C. § 1985 and alleges that Traina and Risher, “[i]n response to the 2015 lawsuit and the 2018 Motion for Summary Judgment, ” have “conspired to deter, by force, intimidation, or threat, [Thorp's] participation in proceedings in this Court, and to injure [Thorp's] person and property on account of his having attended such proceedings.” Id., ¶ 255. Count VIII alleges “abuse of process, ” asserting that Traina and Risher used the administrative summonses “for an ulterior motive, to punish [Thorp] for the prosecution of [his] civil claims, ” “to interfere with his further prosecution thereof, ” and to “hinder any investigation into [Defendants'] illegal conduct.” Id., ¶¶ 263-66. Finally, Count IX alleges a violation of the federal Tax Equity and Fiscal Responsibility Act of 1982, claiming that the District “by negligence or overt act has permitted” the unlawful inspection and disclosure of Thorp's federal-tax-return information. Id., ¶¶ 270-71. As relief, Plaintiff seeks an Order “declaring the summonses issued by Defendant Traina to be unlawful, ” “enjoining the Defendants from enforcing such summonses” and from “further retaliatory acts” and “acts intended to interfere with Thorp's participation in the 2015 lawsuit, ” and an award of monetary damages. Id. at 37.

         Three days after filing his Complaint, Plaintiff sought a temporary restraining order, which the Court denied on May 11, 2018. See Minute Order. Thorp also sought a preliminary injunction, see ECF No. 5 (PI Mot.), which Defendants opposed. See ECF No. 13 (Opp. to PI). After the hearing on the PI Motion, this Court offered both parties the opportunity to submit a “declaration regarding the purpose(s) of the summonses.” Minute Order of June 4, 2018. Both sides submitted supplemental declarations in response to this Order, see ECF Nos. 16 (Def. Supp. Decl.), 17 (Pl. Supp. Decl.), and Plaintiff's Motion for injunctive relief is now ripe for review.

         II. Legal Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” League of Women Voters of United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing America's Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). “The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,' that the requested relief is warranted.'” Hospitality Staffing Solutions, LLC v. Reyes, 736 F.Supp.2d 192, 197 (D.D.C. 2010) (citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).

         Before the Supreme Court's decision in Winter, courts weighed these factors on a “sliding scale, ” allowing “an unusually strong showing on one of the factors” to overcome a weaker showing on another. Davis v. PBGC, 571 F.3d 1288, 1291-92 (D.C. Cir. 2009); see Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit has hinted, though not held, that Winter - which overturned the Ninth Circuit's “possibility of irreparable harm” standard - establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].'” Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)); see League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter). Unresolved, too, is the related question of “whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question' on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (citation omitted).

         Regardless of the extent to which showings of irreparable harm and success on the merits can be diminished, some fundamentals of the four-factor test bear reiterating. Because “the basis of injunctive relief in the federal courts has always been irreparable harm, ” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal quotation marks and citation omitted), a plaintiff must, at minimum, “demonstrate that irreparable injury is likely in the absence of an injunction, ” not just that injury is a “possibility.” Winter, 555 U.S. at 22; see Davis, 571 F.3d at 1292. It is clear, moreover, that where the plaintiff can show neither harm nor success, it is plain that no relief is warranted. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205 F.Supp.3d 4, 26 (D.D.C. 2016).

         III. Analysis

         Defendants allege both jurisdictional and substantive defenses to Thorp's Motion. As to the former, the District contends that Plaintiff is per se unable to show a likelihood of success on the merits as this Court in fact has no authority to hear his case. The city additionally disputes the substantive merits of Plaintiff's allegations against the named parties. Next, Defendants question whether the harm alleged is truly irreparable.

         A. Likelihood of Success on the Merits

         In the preliminary-injunction context, “the ‘merits' on which plaintiff must show a likelihood of success encompass not only substantive theories but also establishment of jurisdiction.” Obama v. Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015). Put otherwise, the “affirmative burden of showing a likelihood of success on the merits . . . necessarily includes a likelihood of the court's reaching the merits.” Nat'l Wildlife Fed'n v. Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring and dissenting). In asserting that Thorp cannot clear this bar, Defendants submit two threshold arguments against his case being heard before this Court - viz., the Federal Tax Injunction Act (TIA) and ...


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