Harris v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
GREGORY HARRIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-0622 (GK)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

This matter is before the Court on Plaintiff’s Motion for

Reconsideration. Upon consideration of the Motion, Opposition,

Reply, and the entire record herein, and for the reasons stated

below, Plaintiff’s Motion for Reconsideration is denied and

Plaintiff’s Request for Leave to Amend the Complaint is granted.

I. BACKGROUND

This lawsuit arises from Plaintiff’s arrest at the Community

Development Institute (“CDI”) Head Start School on April 7, 2008.

See Harris v. District of Columbia, 696 F.Supp.2d 123, 126-27

(D.D.C. 2010). At the time, Plaintiff was on duty as a duly-

commissioned Special Police Officer for the District of Columbia,

and was in possession of a firearm which he believed he was

authorized to carry. Id. Plaintiff was nevertheless arrested and

charged with “Carrying a Pistol Without a License [Outside Home or

Place of Business], in violation of 22 D.C. Code § 4504(a) (2001

ed.).” Id. The United States Attorney’s Office subsequently dropped

the charge on June 16, 2008. Id.
 Unbeknownst to this Court, Robert Ord, Plaintiff’s employer,

filed a lawsuit against the District of Columbia on April 24, 2008.

Pl.’s Mot. for Recons. ¶ 30, at 5. Ord alleged deprivation of a

liberty interest under 42 U.S.C. § 1983 and common law claims of

malicious prosecution and intentional infliction of emotional

distress, all arising from the same April 7, 2008 incident. See Ord

v. District of Columbia, 573 F.Supp.2d 88, 91 (D.D.C. 2008). Judge

John D. Bates dismissed Ord’s suit on August 29, 2008 for lack of

Article III standing. Id. at 95-96. On December 4, 2009, the Court

of Appeals for the District of Columbia reversed the dismissal of

Ord’s case, concluding that Ord had “standing to bring his

preenforcement claim.” Ord v. District of Columbia, 587 F.3d 1136,

1143 (D.C. Cir. 2009).

On April 3, 2009, Plaintiff filed his own suit against the

District of Columbia based on the April 7, 2008 incident. Plaintiff

filed his lawsuit approximately eleven months after Ord filed his

suit and approximately seven months after Judge Bates dismissed

Ord’s claims. Plaintiff’s Complaint contained seven counts:

deprivation of liberty under the Fourth Amendment, when Plaintiff

was arrested without probable cause during a warrantless search

(Count I); deprivation of a property interest, under the Fifth

Amendment, when his property was seized and never returned (Count

II); malicious prosecution of the Plaintiff initiated by Sgt. Moye

(Count III); deprivation of a property interest when he was denied

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the right to work as a Special Police Officer (Count IV);

deprivation of a liberty interest, under the Eighth Amendment

(Count V), excessive force employed during the search (Count VI);

and intentional infliction of emotional distress (Count VII).

Harris, 696 F.Supp.2d at 127.

When filing this suit, Plaintiff’s counsel filled out the

required Civil Cover Sheet [Dkt. No. 1-1]. As it appears on the

docket, this Civil Cover Sheet contains in the section asking the

filer to designate Related Cases a crossed-out “X” in the box for

“Yes” and a clearly legible and circled “X” in the box marked “No.”

The docket does not contain the “related case form,” which must be

filled out when the “Yes” box is marked. Plaintiff now contends

that counsel properly marked “Yes” in the Related Case Section when

submitting the Civil Cover Sheet to the Clerk and that counsel

filled out the necessary related case form. Pl.’s Mot. for Recons.

¶ 37, at 6. According to Plaintiff, “the related case designation

was crossed out by an unknown person” and “the related case form

was apparently never entered into the docket.” Id. ¶ 38, at 6.

Since the docket contained no record of the related case form

and the Civil Cover Sheet appeared to be marked “No” rather than

“Yes” in the Related Case section, this case proceeded separately

from Ord. Indeed, at no point until Plaintiff filed the present

Motion for Reconsideration did Plaintiff move to consolidate the

cases or provide notice in any way to the Court that Ord’s case may

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have been related. This Court dismissed all seven counts of

Plaintiff’s Complaint on March 22, 2010. Harris, 696 F.Supp.2d at

138. Eight days later, on March 30, 2010, the District of Columbia

produced documents in Ord, which was then on remand from the Court

of Appeals. Pl.’s Mot. for Recons. ¶ 46, at 8.

Subsequently, on April 16, 2010, Plaintiff filed this Motion

for Reconsideration of the March 22, 2010 dismissal [Dkt. No. 33].

On May 7, 2010, Defendant filed its Opposition [Dkt. No. 35]. On

May 18, 2010, Plaintiff filed his Reply [Dkt. No. 36].

II. STANDARD OF REVIEW

A motion for reconsideration should be granted only if the

court “finds that there is an intervening change of controlling

law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.” Firestone v. Firestone,

76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and

quotations omitted). A motion for reconsideration is not “a vehicle

for presenting theories or arguments that could have been advanced

earlier.” Jones v. Bernanke, 538 F.Supp.2d 53, 60 (D.D.C. 2008)

(citing Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.

Cir. 1993)); see also Harrison v. Federal Bureau of Prisons, 681

F.Supp.2d 76, 84 (D.D.C. 2010). In other words, the moving party

must show “new facts or clear errors of law which compel the court

to change its prior position.” Nat’l Ctr. for Mfg. Sciences v.

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Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (internal

citation omitted).

III. ANALYSIS

Plaintiff states that he “does not assert that there is any

‘newly discovered evidence’ herein.” Pl.’s Reply 5. Rather,

Plaintiff argues that this “Court has made distinct errors of law

and violated its own Local Rules of procedure” and that “[j]ustice

requires that this Court bring its rulings into harmony with

another case properly designated as ‘related’ which has already

reached review by the D.C. Circuit.” Pl.’s Mot. for Recons. 8-9.

Specifically, Plaintiff argues (1) that his common law claims

should not have been dismissed for failure to provide notice under

D.C. Code § 12-309 because designation of Ord as a related case

provided the requisite notice and (2) that the findings in Ord

require reversal of this Court’s order of dismissal.

A. Plaintiff’s Motion for Reconsideration of Common Law
Claims Is Dismissed

Plaintiff’s common law claims (Counts III and VII) were

previously dismissed for failure to comply with D.C. Code § 12-

309's mandatory notice requirement for maintaining such claims

against the District of Columbia. Harris, 696 F.Supp.2d at 130. In

particular, Plaintiff did not adequately demonstrate that he gave

“sufficient information to Defendant to comply with § 12-309.” Id.

at 131.

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 Plaintiff now argues that by virtue of the error by the

Clerk’s Office in crossing out Plaintiff’s designation of his case

as related to Ord, the Court has violated Local Rule 40.5, which

provides that related cases be heard by the same judge. Pl.’s Mot.

for Recons. 9. Plaintiff contends that, had the cases been properly

assigned as related, Defendant would have had the requisite notice

pursuant to § 12-309. Id. at 9-11.

Fortunately, it is not necessary to affix responsibility for

the crossing out of “Yes” and marking of “No” (and the alleged

disposal of the related case form) on the Civil Case Form. The law

in this Circuit is clear: a motion for reconsideration is not a

device for arguing theories that could have been advanced at an

earlier stage. Jones, 538 F.Supp.2d at 60 (citing Kattan, 995 F.2d

at 276). Plaintiff was clearly aware of Ord, which was filed

approximately eleven months prior to Harris, and at no time made

any motion to consolidate the cases or any other effort to inform

the Court of a supposed mistake by the Clerk’s Office, such as in

his opposition to Defendant’s Motion to Dismiss.1 Therefore,

Plaintiff’s Motion for Reconsideration as to Counts III and IV is

denied.

1
Plaintiff’s silence is particularly curious in light of the
fact that his lawyer is the same lawyer representing Mr. Ord. The
Court also notes that the factual representations Plaintiff’s
counsel makes in his Motion for Reconsideration were not made under
oath, subject to the penalty of perjury.

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 B. Plaintiff’s Motion for Reconsideration of § 1983 Claims
Is Denied

Plaintiff’s remaining claims (Counts I, II, IV, V, and VI)

were dismissed, among other reasons, for failure “to allege an

unconstitutional custom, practice, or policy, which is required to

establish a claim against a municipality.” Harris, 696 F.Supp.2d at

128. Plaintiff argues that this conclusion is “in conflict with the

Circuit Court’s findings regarding the same factual issues.”2 Pl.’s

Mot. for Recons. 11. Plaintiff argues that this Court’s March 22,

2010 Decision conflicts with the D.C. Circuit’s “finding” that “the

April 7, 2008 raid . . . was part of a larger scheme by District of

Columbia officials ‘to drive [Ord’s] company from the District of

Columbia.’” Id. (quoting Ord, 587 F.3d at 1141).

Plaintiff’s argument fails for two reasons. First, as

Plaintiff appears to recognize in his Motion, the Circuit Court

made no “controlling findings” as to any scheme by the District of

Columbia in Ord. Mot. for Recons. 8. Rather, the Circuit Court

accepted “‘as true all material allegations of the complaint’” for

the purposes of reviewing the District Court’s grant of a 12(b)(1)

motion. Ord, 587 F.3d at 1140 (quoting Warth v. Seldin, 422 U.S.

490, 501 (1975)). Whatever Ord may have pled in his lawsuit is

2
To the extent that the Plaintiff generally takes issue with
the factual and legal conclusions of this Court’s March 22, 2010
Decision, he does not state “new facts or clear errors of law which
compel the court to change its prior position.” Nat’l Ctr. for Mfg.
Sciences, 199 F.3d at 511 (internal citation omitted).

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irrelevant to Harris’ failure to plead an unconstitutional custom,

practice, or policy in this lawsuit. Most assuredly, the Court of

Appeals made no factual findings and reached no legal conclusions

regarding the existence of an unconstitutional custom, practice, or

policy.

Second, Ord is entirely inapposite. Ord concerned whether the

plaintiff sufficiently pled Article III standing to move forward

with a preenforcement challenge. Ord 587 F.3d at 1140. In this

case, Plaintiff failed to allege the existence of an

unconstitutional custom, practice, or policy under § 1983.

Obviously, those are two very different issues. In sum, the holding

in Ord simply has no bearing on whether or not Harris made

sufficient allegations to survive a motion to dismiss under Monell

v. Dep’t of Soc. Servs. 436 U.S. 658, 691 (1978). Therefore,

Plaintiff’s Motion for Reconsideration as to Counts I, II, V, VI,

and VII is denied.

C. Plaintiff’s Request for Leave to Amend the Complaint Is
Granted

Plaintiff also requests, albeit in a footnote, leave to amend

his Complaint. Pl.’s Mot. for Recons. 13 n. 9. Under Rule 15(a)(2),

leave to amend shall be freely given when justice so requires.

Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d

1080, 1083-85 (D.C. Cir. 1998). Although Plaintiff disavows

asserting any “newly discovered evidence,” he refers to documents

produced in Ord. Pl.’s Reply 5; Pl.’s Mot. for Recons. ¶ 46, at 8.

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Plaintiff argues that these documents call into question the facts

he alleged in his Complaint, but now, “based upon this one set of

documents, Harris can demonstrate both Monell liability and fully

satisfy his statutory notice requirements.” Pl.’s Mot. for Recons.

14. In light of the surfacing of these documents, Plaintiff’s

request for leave to amend the Complaint is granted.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for

Reconsideration is denied and Plaintiff’s Request for Leave to

Amend the Complaint is granted. An order shall issue with this

Memorandum Opinion.

/s/
December 21, 2010 Gladys Kessler
U.S. District Judge

Copies to: attorneys on record via ECF

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