Hubert PHILOGENE, Plaintiff, v. DISTRICT OF COLUMBIA Et Al., Defendants

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HUBERT PHILOGENE, :
:
Plaintiff, : Civil Action No.: 08-1399 (RC)
:
v. : Re Document No.: 19
:
DISTRICT OF COLUMBIA et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on the defendants’ motion to dismiss. The plaintiff

brings suit against the District of Columbia and Sergeant Kenneth W. Mack, alleging that they

improperly cited, arrested, and prosecuted him for operating a nightclub without a license. The

plaintiff alleges that the defendants’ conduct violated the common law and the U.S. Constitution.

Because the plaintiff’s factual allegations do not support a claim of municipal liability, the court

will dismiss the plaintiff’s constitutional claims against the District of Columbia. In addition, the

court will dismiss the plaintiff’s constitutional claims against Sergeant Mack because they are

time-barred. Absent any viable federal claims, the court chooses not to exercise supplemental

jurisdiction over the plaintiff’s common-law claims. Accordingly, the court grants the

defendants’ motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

From 2004 to 2007, the plaintiff operated a restaurant and nightclub in the District of

Columbia called The Lime. Pl.’s Opp’n to Defs.’ Mot. to Dismiss [Dkt. # 21] at 2. Sergeant

Kenneth W. Mack, an officer with the District of Columbia’s Metropolitan Police Department,
visited The Lime in early 2007 and asked to see the plaintiff’s license or permits. Id. Over the

next few months, Sergeant Mack issued the plaintiff several citations for operating The Lime as a

public hall without a proper permit. Id. In July 2007, the plaintiff was arrested for the same

offense. Id. at 3. He was prosecuted, convicted, and sentenced to five days in prison. Id.

In May 2008, the plaintiff filed suit against the District of Columbia in the Superior Court

of the District of Columbia, and the defendant removed the plaintiff’s action to this court. In

May 2011, the plaintiff amended his complaint to name Sergeant Mack as an additional

defendant. 2d Am. Compl. [Dkt. # 16]. Now before the court is the defendants’ motion to

dismiss for failure to state a claim on which relief can be granted.1 See Defs.’ Mot. to Dismiss

(“Defs.’ Mot.”) [Dkt. # 19].

III. ANALYSIS

A. The Court Grants the Defendants’ Motion to Dismiss

1. Legal Standard for a Motion to Dismiss Under Rule 12(b)(6)

All that the Federal Rules of Civil Procedure require of a complaint is that it contain a

“short and plan statement of the claim” in order to give the defendant fair notice of what the

claim is and the grounds upon which it rests. FED. R. CIV. P. 8(a)(2), see Erickson v. Pardus, 551

U.S. 89, 93 (2007). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

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The defendants also argue that the plaintiff’s claims against the District of Columbia must be
dismissed under Rule 12(b)(5) because service was untimely. Defs.’ Mot. at 2–5. The plaintiff
originally filed suit on May 29, 2008, but he did not serve the District of Columbia until August
12, 2008. The defendants challenge this as untimely because service occurred more than 60 days
after the complaint was originally filed. See Superior Court of the District of Columbia, Local
Civil Rule 4(j). Once this case was removed, however, the federal rules give the plaintiff 120
days to serve the defendants (which he met). FED. R. CIV. P. 4(m). In any event, given the
plaintiff’s former pro se status and his unsuccessful effort to serve the District within the 60-day
period, the court concludes that the plaintiff has shown good cause for any extra time needed.
See id. The plaintiff’s claims against Sergeant Mack will be dismissed as untimely for the
reasons discussed below.

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See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes

the factual allegations of the complaint to be true and construes them liberally in the plaintiff’s

favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It

is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint,

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,

28–29 (D.D.C. 2010), nor must the plaintiff plead law or match facts to every element of a legal

theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 697 (2009) (internal quotation marks omitted). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,” are therefore

insufficient to withstand a motion to dismiss. Id. A court need not accept a plaintiff’s legal

conclusions as true, id., nor must the court presume the veracity of legal conclusions that are

couched as factual allegations. Twombly, 550 U.S. at 555.

2. The Plaintiff Fails to State a § 1983 Claim Against the District of Columbia

The plaintiff alleges that the District of Columbia violated his constitutional rights, and

he therefore seeks damages under 42 U.S.C. § 1983. A municipality, such as the District, is only

liable under § 1983 for the acts of its employees if a plaintiff can show that: (1) he was deprived

of a constitutional right; and (2) such deprivation was the result of a government policy or

custom. Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004); see Monell v. Dep’t

of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691–94, (1978). Under § 1983, a plaintiff may

not hold the District liable under a simple theory of respondeat superior. Burnett v. Sharma, 511

F. Supp. 2d 136, 141 (D.D.C. 2007).

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 Here, the plaintiff alleges that Sergeant Mack violated a number of his constitutional

rights by citing and arresting him. See 2d Am. Compl. ¶¶ 20–33. Even if his allegations were

sufficient to establish a predicate constitutional violation,2 the plaintiff’s claim founders on the

second step of the inquiry. The plaintiff’s second amended complaint does not articulate any

specific allegations describing a government policy or custom behind Sergeant Mack’s actions.

Instead, the plaintiff summarily reiterates the elements of a claim for municipal liability under

Monell. Id. ¶ 21 (“Consequently, while acting under color of District of Columbia law, the

Defendant commenced to implement a policy, custom, usage or practice wherein the rights,

privileges or immunities of the Plaintiff was violated.”). These formulaic and threadbare recitals

of a cause of action are legally insufficient to shield the plaintiff’s claim from a motion to

dismiss. Twombly, 550 U.S. at 555. Because the plaintiff has alleged no factual basis to support

his claim of municipal liability, the court concludes that the plaintiff has not stated a plausible

claim to relief against the District of Columbia. Id.; see also Creecy v. District of Columbia,

2011 WL 1195780, at *9 (D.D.C. 2011) (holding that Iqbal requires dismissal of conclusory

claims that individual officers’ unconstitutional conduct gave rise to municipal liability); Trimble

v. District of Columbia, 779 F. Supp. 2d 54, 58–59 (D.D.C. 2011) (same). Accordingly, the

court will dismiss the plaintiff’s § 1983 claim against the District of Columbia.

3. The Plaintiff Fails to State a Claim Against the District Under 42 U.S.C. § 1985(3) and
42 U.S.C. § 1986

The plaintiff also brings claims against the District of Columbia under 42 U.S.C. §

1985(3) and § 1986, but these charges must be dismissed for the same reasons discussed above.

2
The court pauses to express its skepticism that the plaintiff’s factual allegations suffice to state a
plausible constitutional claim. The plaintiff does not allege that the defendants lacked probable
cause for his arrest, nor does he allege that his conviction was in any way contrary to law.
Because his claims will be dismissed for other reasons, the court elects not to engage in a lengthy
analysis of the plaintiff’s many constitutional claims.

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Municipal liability under § 1985(3) must be predicated on an “official custom or policy,” which

the plaintiff has not sufficiently alleged. See Zherka v. City of New York, 2012 WL 147914, at

*1 (2d Cir. 2012); Parrott v. District of Columbia, 1991 WL 126020, at *5 (D.D.C. 1991)

(concluding that “[e]ven if [the plaintiff’s allegations] were true, there is no allegation that this

discriminatory conspiracy was part of an official policy, and thus plaintiff has failed to state a

claim against the district”). In the alternative, the court concludes that the plaintiff’s factual

allegations do not support plausible a claim to relief. See Iqbal, 556 U.S. at 697. The plaintiff

does not allege any facts to suggest that the defendants committed any acts in furtherance of a

racially motivated conspiracy. Instead, he simply parrots the elements of a § 1985(3) claim.

This naked assertion, wholly devoid of any factual enhancement, is insufficient to survive a

motion to dismiss. See id. at 678; Atherton v. District of Columbia Office of the Mayor, 567 F.3d

672, 688 (D.C. Cir. 2009) (affirming dismissal of the plaintiff’s § 1985(3) claim under Iqbal

because the plaintiff did not allege any facts other than the requisite elements of the legal claim).

Because a colorable claim under § 1985 is a prerequisite to a claim under § 1986, the

plaintiff’s § 1986 claim must also be dismissed. Burnett v. Sharma, 511 F. Supp. 2d 136, 145

(D.D.C. 2006) (“The language of [§ 1986] establishes unambiguously that a colorable claim

under § 1985 is a prerequisite to stating an adequate claim . . . under § 1986.”).

4. The Plaintiff’s Claims Against Sergeant Mack Are Time-Barred

The plaintiff alleges that Sergeant Mack violated 42 U.S.C. §§ 1983, 1985, and 1986. 2d

Am. Compl. ¶¶ 20–34. The defendants argue that these claims are time-barred. Defs.’ Mot. at 4.

To be precise, the defendants point out that Sergeant Mack was never served with the original

complaint. Id. The defendants maintain that Sergeant Mack thus did not receive any notice of

this lawsuit until May 2011, when he was served with the second amended complaint. Id. The

defendants conclude that the plaintiff’s claims are barred by D.C.’s three-year statute of
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limitations for constitutional torts. Id. The plaintiff counters that his amended pleadings are not

barred by the statute of limitations because they relate back to the date of the original pleading.

Pl.’s Opp’n at 8.

Claims under 42 U.S.C. § 1986 must be brought no more than one year after the cause of

action accrues. Id. (“[N]o action under the provisions of this section shall be sustained which is

not commenced within one year after the cause of action has accrued.”). Because sections 1983

and 1985 do not have any built-in statute of limitations, courts in this jurisdiction apply the three-

year statute of limitations imposed by D.C. law. Carney v. Am. Univ., 151 F.3d 1090, 1096

(D.C. Cir. 1998); Burnett v. Sharma, 2007 WL 1020782, at *5 (D.D.C. 2007); see D.C. CODE §

12-301(8). According to the second amended complaint, the last of Sergeant Mack’s allegedly

unconstitutional actions took place on January 28, 2008.3 2d Am. Compl. ¶ 16. The plaintiff did

not serve Sergeant Mack with the second amended complaint until May 2011—more than three

years later. Thus, all of the plaintiff’s federal claims against Sergeant Mack appear to be time-

barred.

The plaintiff may nevertheless pursue his claim against Sergeant Mack if he can show

that the claims in his amended pleading relate back to the filing of the original pleading. Under

certain circumstances, the “relation back” doctrine enables a plaintiff to correct a pleading error,

by adding either a new claim or new party, after the statutory limitations period has expired. See

United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002). The rationale underlying this rule is

that a party who has been notified of litigation concerning a particular occurrence has been given

3
Absent any indication that the plaintiff’s conviction was reversed through direct appeal,
expunged, or otherwise declared invalid, any claims stemming from the plaintiff’s prosecution are
barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Accordingly, any actionable claims
against Sergeant Mack may have accrued at an even earlier date.

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all the notice that statutes of limitations were intended to provide. Baldwin Cnty. Welcome Ctr.

v. Brown, 466 U.S. 147, 150 n.3 (1984).

Federal Rule of Civil Procedure 15(c) allows allegations in an amended complaint to

relate back to the date of the original complaint if the claims or defenses asserted in the amended

pleading “arose out of the conduct, transaction, or occurrence set out—or attempted to be set

out—in the original pleading.” FED. R. CIV. P. 15(c)(1)(B). If a plaintiff wishes to assert claims

against a newly named defendant, however, the plaintiff must meet two additional requirements:

first, the newly named defendant must have “received such notice of the action that it will not be

prejudiced in defending on the merits” within 120 days, see FED. R. CIV. P. 4(m), of serving the

original summons and complaint. FED. R. CIV. P. 15(c)(1)(C)(i). Second, the plaintiff must

show that the newly named defendant “knew or should have known that the action would have

been brought against it, but for a mistake concerning the proper party’s identity.” FED. R. CIV. P.

15(c)(1)(C)(ii).

This Circuit has explained that the purpose of this “mistaken identity” doctrine is to

“avoid the harsh consequences of a mistake that is neither prejudicial nor a surprise to the

misnamed party.” Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1997) (interpreting

an earlier version of Rule 15); see Ferguson v. Local 689, Amalgamated Transit Union, 626 F.

Supp. 2d 55, 61 (D.D.C. 2009) (recognizing that “Rule 15(c)(1)(C) is a name-correcting

amendment that is intended to avoid the harsh consequences of a mistake”). Rule 15(c)(1)(C)

thus ensures that “[a] potential defendant who has not been named in a lawsuit by the time the

statute of limitations has run is entitled to repose—unless it is or should be apparent to that

person that he is the beneficiary of a mere slip of the pen, as it were.” Rendall-Speranza, 107

F.3d at 918. The Supreme Court has since clarified the inquiry, emphasizing that courts must

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determine whether the prospective defendant should have known of the possibility that it would

be sued despite the plaintiff’s mistake. Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485, 2493

(2010) (“Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known . .

. not what the plaintiff knew or should have known at the time of filing her original complaint.”).

Here, the plaintiff presents no evidence to suggest that Sergeant Mack received any

notice of this action prior to May 2011, as Rule 15(c)(1)(C)(i) requires. The original complaint

did not name Sergeant Mack, nor did the plaintiff bring any claims against the Metropolitan

Police Department. Although the first amended complaint includes Sergeant Mack in its factual

allegations, Sergeant Mack was not named as a party. No evidence suggests that Sergeant Mack

received any word of the plaintiff’s suit until he was served with the second amended complaint

in May 2011. Accordingly, the court concludes that Sergeant Mack had no reason to believe he

would be named as a defendant. See Krupski, 130 S. Ct. at 2493. Nor was the plaintiff’s failure

to name Sergeant Mack a simple case of mistaken identity or a “slip of the pen.” Cf. Miller v.

Holzmann, 2007 WL 778599, at *2–3 (D.D.C. 2007) (concluding that the plaintiff’s complaint

could relate back because the defendants were closely related members of the same corporate

family who employed the same attorney). Because the plaintiff has not satisfied the notice

requirement imposed by Rule 15(c)(1)(C)(i), his claims against Sergeant Mack do not relate back

to the original complaint. See Ferguson v. Local 689, Amalgamated Transit Union, 626 F. Supp.

2d 55, 61 (D.D.C. 2009). Accordingly, the plaintiff’s claims against Sergeant Mack are time-

barred and must be dismissed.

B. The Court Declines to Exercise Supplemental Jurisdiction over the Plaintiff’s
Remaining Claims

In addition to the federal claims discussed above, the plaintiff brings a number of

common-law claims. 2d Am. Compl. ¶¶ 34-37. In deciding whether to exercise supplemental

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jurisdiction over common-law claims, federal courts should consider “judicial economy,

convenience and fairness to litigants.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988). Where, as here, all federal-law claims are dismissed, this balance of factors weighs

heavily toward declining jurisdiction over the remaining common-law claims. 28 U.S.C. §

1367(c)(3); Shekoyan v. Sibley Intern., 409 F.3d 414, 423 (D.C. Cir. 2005); Richardson v.

Capital One, N.A., 2012 WL 892962, at *5 (D.D.C. 2012). Accordingly, the court will remand

the plaintiff’s remaining claims to Superior Court, where the plaintiff initially filed this action.

See Pena v. A. Anderson Scott Mortg. Grp., Inc., 692 F. Supp. 2d 102, 110 (D.D.C. 2010).

IV. CONCLUSION

For the foregoing reasons, the court grants the defendants’ motion to dismiss. An order

consistent with this memorandum opinion is separately and contemporaneously issued this 25th

day of May, 2012.

RUDOLPH CONTRERAS
United States District Judge

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