Amobi v. District of Columbia Department of Corrections

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 25, 2013 Decided June 27, 2014

No. 12-7090

STEPHEN IFEANYI AMOBI AND NGOZI AMOBI,
APPELLANTS

v.

DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, ET
AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01501)

J. Michael Hannon Jr. argued the cause and filed the
briefs for appellants.

Richard S. Love, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General at the time the
brief was filed. Loren L. AliKhan, Deputy Solicitor General
and Mary L. Wilson, Assistant Attorney General, entered
appearances.
 2
Before: TATEL and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: The facts giving rise to this case
are as curious as they are disturbing. Eight years ago, Derrick
Brown (“Brown” or “the Inmate”), a conniving prisoner
serving a series of weekend sentences at the District of
Columbia Jail, assaulted Correctional Officer (“CO”) Stephen
Amobi. Despite the fact that Amobi was the victim of an
unprovoked attack whose injuries required medical attention,
Amobi was arrested, criminally prosecuted, and fired from his
employment. Even after being acquitted at his subsequent
criminal trial, after Brown admitted to initiating the
confrontation and assaulting the officer, and after prevailing in
a contested administrative hearing, Amobi was not reinstated
until a D.C. Superior Court judge intervened.

Amobi and his wife sued the District of Columbia, the
D.C. Department of Corrections (“DOC”), and several Jail
officials, seeking relief under federal law and D.C. common
law for conspiracy, false arrest, malicious prosecution,
defamation, intentional infliction of emotional distress
(“IIED”), deprivation of due process, aiding and abetting, and
loss of consortium. The Defendants moved for summary
judgment and, in a perfunctory nine-page opinion, the district
court granted the motion. On appeal, Amobi challenges the
district court’s judgment in favor of the Defendants.
Concluding that genuine issues of material fact exist regarding
the false arrest, malicious prosecution, and IIED claims, we
affirm in part, reverse in part, and remand to the district court
for further proceedings.
 3
I

A

The puzzling details of this dispute begin on the morning
of June 4, 2006, when the Jail was locked down because of the
escape of two extremely dangerous inmates the day before.
Brown, who is transgendered, was serving the third of fifteen
weekends for simple assault and was scheduled for release at
noon. The lockdown slowed the release process and Brown
became increasingly agitated as he waited to be released from
his cell. When Amobi arrived, Brown was argumentative and
abusive. By the time Amobi and Brown arrived at the sally
port, the verbal altercation had escalated into a nose-to-nose
shouting match. Amobi attempted to retreat into the
“Bubble,” a round glass enclosure separating the sally port
from the inmate housing units, but Brown obstructed his path.

As Brown later testified, when he saw the officials
approaching the sally port, he wanted to lure Amobi into
attacking him so he could file a civil suit and “get some
money.” Brown was in a position to see, and be seen by,
someone in the adjacent hallway. Warden Robert Clay,
Deputy Warden Stanley Waldren, and Major Elbert White
were conducting a fire and safety inspection. As the officials
approached the sally port, Brown took advantage of their
restricted line of sight and punched Amobi on his right
forearm. Amobi reacted immediately by restraining Brown
and forcing him against the wall. The officials, who saw
Amobi’s reaction, but not the assault that precipitated it,
sprinted to the sally port, ordered Amobi to release Brown, and
turned a deaf ear to Amobi’s attempt to explain he had acted in
self-defense. White ordered Amobi not to speak until
instructed to do so.
 4
After receiving medical attention, Amobi was taken to the
Command Center where his injuries were photographed.
When he proceeded to Waldren’s office, as instructed, he
found the three officials who had stopped the altercation, the
Director of the Office of Internal Affairs (Wanda Patten) and
an OIA investigator (Valerie Beard). Amobi was ordered
placed on administrative leave, and he and the witnesses,
including the witnesses who had actually seen what happened
or heard Brown boast that he had just set up a lawsuit,
completed incident reports.

The initial investigation ignored this exculpatory evidence
and focused instead on an alleged interview with Brown in
which Patten and Beard claimed Brown wanted to press
criminal charges. While Amobi was preparing his incident
report, the police were summoned. The responding police
officer, Albert Henley, was shown the incriminating incident
reports of Clay, Waldren, and White, but none of the
exculpatory reports. Officer Henley was also told that the
Inmate had made a corroborating statement witnessed by
Patten and Beard. As a result, Amobi was arrested, charged
with simple assault, and released.

B

On July 12, 2006, Amobi was summarily removed from
his position. The basis for Amobi’s dismissal included the
interview with Inmate Brown which, as subsequent events
revealed, was fictional. Amobi promptly challenged the
Department’s actions and, after a hearing on August 3, 2006,
the hearing officer determined Amobi had acted in self-defense
and recommended reinstatement. DOC’s Director, Devon
Brown, disagreed, and Phuoc Nguyen, the hearing officer,
under pressure from the administration, reconsidered and
recommended termination. Amobi appealed, but for reasons
 5
never explained in the record, the appeal was never resolved.
Consequently, Amobi demanded arbitration in accordance
with his union’s collective bargaining agreement (“CBA”).

C

The criminal prosecution, which had stalled in August
2006 when the District was unable to produce the photos of
Amobi’s injuries, see United States v. Amobi, 2006 CMD
012120 (D.C. Super. Ct. Aug. 15, 2006), was reopened in
October 2006, after the U.S. Attorney’s Office was, according
to Amobi, pressured to refile the charges. The government’s
case fell apart when Brown took the stand, however, and for
the first time, provided a damning, self-inculpatory account of
the artifice he employed during the June 2006 assault. Brown
admitted he wanted to “set Mr. Amobi up so someone could
witness [Amobi] do something to [him].” S.A. 297. 1
Brown confessed he knew the three Jail officials were
“important people”2 and that, in wake of the inmate escape, the
officials “were very suspicious about things that were going on
in the jail.” Id. at 296–97. Exultant over having secured the
Jail officials as witnesses to his ruse, Brown boasted to CO
Wayne Taylor of his exploits, which CO Stephen Harris
overheard and documented in his incident report. And true to
his word, Brown made good on his plan to file a civil suit. See

1
“S.A.” and “P.A.” refer to Appellants’ Supplemental Appendix
and Public Appendix, respectively.
2
Brown’s numerous run-ins with the law provided ample
opportunity to become well acquainted with DOC officials. Brown
testified he had a criminal history of simple assault, fleeing law
enforcement, four counts of destruction of property, sexual
solicitation, and contempt of court. P.A. 12; S.A. 275–76. Brown
also testified he attempted to smuggle marijuana into the Jail the
weekend before the June 2006 assault. S.A. 290–91.
 6
Brown v. D.C. Dep’t of Corrections, 2006 SC3 014278 (D.C.
Super. Ct. Dec. 22, 2006). Brown explained his motivation
for the stunt was a desire to get even with those who ridiculed
him for being transgendered “when [he] was coming to do [his]
sentence.” S.A. 305–06. Ultimately, Brown owned up to
“turn[ing] the altercation from verbal to physical . . . [so] that
[he] would get a response from Mr. Amobi[,] . . . get . . .
money[,] . . . and . . . get . . . witnesses.” S.A. 312. Following
Brown’s bombshell testimony, the trial judge found Amobi not
guilty—the verdict coming exactly one year to the day of the
June 4, 2006 altercation.

D

Although Amobi had requested the arbitration, to which
he was entitled under his CBA, he requested that, in light of his
exoneration, he be allowed to return to work immediately.
The District’s attorney, Repunzelle Johnson, also counseled
against proceeding with the scheduled arbitration and instead
advised Director Brown to return Amobi to work. In an
October 1, 2007 memo to Director Brown, Johnson laid bare
the numerous discrepancies in the District’s case. First,
Johnson recounted how each of the three Jail officials
acknowledged they did not see what happened prior to the
alleged assault. Second, Johnson highlighted the fact that
DOC “did not do an independent investigation to determine
what happened prior to the assault of Inmate Brown.” S.A.
398. Third, and perhaps most seriously, Johnson cautioned
that although the police had relied on DOC’s eyewitness
statements, Patten and Beard’s supposed interview of Brown
was pure fiction, and Amobi’s incident report was never given
to the police. Fourth, Johnson reminded Director Brown of
the Inmate’s incriminating testimony and that CO Ernest
Wallace also corroborated Amobi’s account. Fifth, Johnson
informed Director Brown that, in addition to Amobi’s visit
 7
with Dr. Boakai, the District had “independent medical
documentation from a private physician which supports that
Amobi had a bruise on his right arm.”3 Id. Sixth, Johnson
lamented DOC’s inability to locate the three photographs taken
of Amobi’s injuries. Finally, Johnson admonished the
Director for failing to consider all the Douglas Factors, which,
on balance, suggested “termination is probably not
warranted.”4 S.A. 399.

Despite Amobi’s request and Johnson’s appeal to reason,
Director Brown proceeded with the arbitration hearing and
refused to reinstate Amobi. Hearings were held on October 2
and 3, 2007. A little less than three months later, the arbitrator
concluded Amobi had applied appropriate self-defense

3
In fact, based on medical reports, the D.C. Office of Risk
Management, Disability Compensation Program determined that
Amobi was eligible for disability compensation as a result of the
contusion he suffered on his right arm. See P.A. 14, 158.
4
See Douglas v. Veterans Admin., 5 MSPB 313, 332 (1981). In
Douglas, the United States Merit Systems Protection Board
announced twelve factors relevant to determination of an appropriate
penalty for a government employee’s job-related misconduct,
including: the nature and seriousness of the offense; the employee’s
job level, past work record, and past disciplinary record; likely effect
of the offense on the employee’s ability to perform at a satisfactory
level; consistency of proposed penalty with those imposed for
similar offenses and with an applicable agency table of penalties;
notoriety of the offense; impact on agency reputation; clarity of the
rules violated; potential for employee rehabilitation; mitigating
circumstances; and adequacy of alternative sanctions. See also
Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985)
(noting that an agency must “conscientiously consider the relevant
[Douglas] factors and . . . strike a responsible balance within
tolerable limits of reasonableness”).
 8
techniques and that his summary dismissal was without cause.
The arbitrator further ordered that Amobi be reinstated with
full backpay and benefits and that DOC correct, remove, or
destroy all records related to Amobi’s summary removal.

Seeking further redress, Amobi and his wife filed suit
against the District, DOC,5 and several Jail officials on June 4,
2008. On August 9, 2012, the district court granted the
Defendants’ motion for summary judgment, and Amobi and
his wife timely appealed on September 10, 2012.

II

We review de novo a district court’s grant of summary
judgment, viewing all evidence in the light most favorable to
the non-moving party. Ayissi-Etoh v. Fannie Mae, 712 F.3d
572, 576 (D.C. Cir. 2013). The district court focused on the
following claims: common law and constitutional false arrest;
common law malicious prosecution; common law and
constitutional defamation; deprivation of procedural due
process; and IIED.6 We address each in turn.

5
DOC is a non sui juris subordinate government agency, D.C.
Code § 24-211.01; Simmons v. District of Columbia Armory Bd., 656
A.2d 1155, 1156 (D.C. 1995), and has since been dismissed from
this suit.
6
Holding that Amobi had no other viable claim against any of the
defendants, the district court summarily dismissed Amobi’s aiding
and abetting and loss of consortium claims. Amobi v. District of
Columbia Gov’t, 882 F. Supp. 2d 78, 84 (D.D.C. 2012). Perhaps
employing a similar rationale, the district court did not address
Amobi’s conspiracy claims. See id. at 82 n.6. Because we
conclude genuine issues of material fact exist as to the false arrest,
malicious prosecution, and IIED claims, on remand the district court
must reckon with these previously unanalyzed counts.
 9
A

1

Amobi claims the district court erred in concluding there
was probable cause to effectuate his arrest. We are unable to
decide the merits of the common law claim, however, because
it is barred by a one-year statute of limitations. See D.C. Code
§ 12-301(4). Amobi filed his complaint on June 4, 2008, two
years after his arrest. Although the district court did not
decide the claim was time-barred, Appellees raised the
timeliness of the common law claim in their motion for
summary judgment below. See P.A. 94. Appellees may
therefore reassert the argument now. Warren v. District of
Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (“[A] prevailing
party may defend the judgment on any ground decided or
raised below.”).

Amobi’s rejoinder is unavailing. He claims Appellees’
fraudulent concealment of exculpatory evidence tolls the
statute of limitations. This argument fails. To establish a
claim of fraudulent concealment, Amobi must demonstrate that
the information fraudulently concealed was material to the
delay. Fitzgerald v. Seamans, 384 F. Supp. 688, 693 (D.D.C.
1974). “If plaintiff’s delay in bringing the lawsuit is to be
excused, the Court must have reason to believe that the ‘timely
assertion’ of plaintiff’s rights ‘has been postponed as a result of
the fraud of the party against whom liability might otherwise
have been urged.’” Id. (quoting Searl v. Earll, 221 F.2d 24,
26 (D.C. Cir. 1954)).

Our cases require that the information concealed be “so
material in character that knowledge of a basis for, or
intelligent prosecution of, the cause of action was precluded.”
Emmett v. E. Dispensary & Cas. Hosp., 396 F.2d 931, 937
 10
(D.C. Cir. 1967). Said differently, the fraudulent concealment
must actually succeed in precluding the plaintiff from
acquiring knowledge of the material facts. See Westinghouse
Elec. Corp. v. City of Burlington, 351 F.2d 762, 764 (D.C. Cir.
1965). Where “the plaintiff knew, or by the exercise of due
diligence could have known, that he may have had a cause of
action,” the claim that defendants’ fraudulent concealment of
the facts tolls the statute of limitations must fail. Id.

Here, Amobi contends “[t]he concealment of the lack of
an investigation by the Office of Internal Affairs, and the
cover-up of the fact that no interview with the inmate ever took
place following the incident caused the statute to be tolled until
this information was revealed.” Appellants’ Reply Br. at 3.
But Amobi’s eventual claim for false arrest was not predicated
on the fraudulently concealed evidence. See P.A. 36, ¶ 38
(noting as the basis for his false arrest claim his arrest by the
police “without probable cause and without the issuance of a
warrant as required under District of Columbia law”). Indeed,
Amobi concedes, perhaps unwittingly so, that “[t]he evidence
of fraudulent concealment was not revealed to [him] until after
the initiation of his lawsuit.” Appellants’ Reply Br. at 3
(emphasis added). Thus, if Amobi knew he had—and in fact
initiated—a cause of action for false arrest, Appellees did not
succeed in precluding him from acquiring knowledge of the
material facts necessary to initiate the claim. While
knowledge of the alleged fraudulent concealment would have
no doubt buttressed a claim of false arrest, “[m]ere ignorance
of evidentiary details, although such information might be
useful at trial, will not suffice,” Fitzgerald, 384 F. Supp. at 693
(citing Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 87
(2d Cir. 1961)).
 11
2

Amobi’s constitutional false arrest claim presents a
tougher question. Constitutional and common law claims of
false arrest are generally analyzed as though they comprise a
single cause of action. See, e.g., Scott v. District of Columbia,
101 F.3d 748, 753–54 (D.C. Cir. 1996); District of Columbia v.
Minor, 740 A.2d 523, 529 (D.C. 1999) (noting that, if the court
finds a viable common law claim of false arrest, then a viable
constitutional claim naturally flows, and vice versa). The
elements of both claims are “substantially identical.” Scott,
101 F.3d at 753. Amobi seeks compensatory and punitive
damages under 42 U.S.C. § 1983 for violations of his Fourth
Amendment right to be free from unreasonable seizure.
Specifically, Amobi claims that, in contravention of D.C. Code
§ 23-581(a)(1),7 he was arrested without probable cause for an
alleged assault that did not occur in Officer Henley’s presence.
Appellees agree that, construed as a Fourth Amendment claim
for false arrest, Amobi is safely within the prescribed
three-year statute of limitations. See Appellees’ Br. at 33
(citing Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir.
1998)). Yet, because Amobi did not name Officer Henley as a
defendant in his complaint, see P.A. 25–26, he must show
either that the “custom or policy of the [District] caused the
violation,” Brown v. District of Columbia, 514 F.3d 1279,
1283 (D.C. Cir. 2008), or that one of the individually named

7
Section 23-581(a)(1) provides that an officer may only make a
warrantless arrest for a misdemeanor committed outside his presence
if there is probable cause and reason to believe that unless
immediately arrested, the individual “may not be apprehended, may
cause injury to others, or may tamper with, dispose of, or destroy
evidence.” See also Enders v. District of Columbia, 4 A.3d 457,
466 (D.C. 2010).
 12
defendants8 is to blame, see Jones v. Horne, 634 F.3d 588, 600
(D.C. Cir. 2011).

As to the District, Amobi seems to argue that it violated
his Fourth Amendment rights based on its alleged custom and
policy of failing to comply with its statutory prohibition on
warrantless arrests for misdemeanors committed outside of an
officer’s presence. Amobi is mistaken. Whether the assault
occurred in Officer Henley’s presence is not the sine qua non
of a Fourth Amendment violation. The Supreme Court has
made clear that the “Constitution’s protections concerning
search and seizure” do not vary with state arrest law, see
Virginia v. Moore, 553 U.S. 164, 172–73 (2008), and Amobi
makes no argument that the Constitution requires the District’s
misdemeanor arrest rule. Nevertheless, whether Officer
Henley could have had probable cause to execute Amobi’s
arrest—even without the crime occurring in his presence—is
still a relevant inquiry.

“Generally, probable cause exists where the facts and
circumstances within the arresting officer’s knowledge, of
which he had reasonably trustworthy information, are
sufficient in themselves to warrant a reasonable belief that an
offense has been or is being committed.” Rucker v. United
States, 455 A.2d 889, 891 (D.C. 1983). “The issue of
probable cause in a false arrest case is a mixed question of law
and fact that the trial court should ordinarily leave to the jury.”
Bradshaw v. District of Columbia, 43 A.3d 318, 324 (D.C.
2012). Only where the facts are undisputed or clearly
established does probable cause become a question of law for
the court. Id. The district court held Amobi’s claim for false

8
The individually named defendants include Devon Brown,
Robert Clay, Stanley Waldren, Elbert White, Joan Murphy, and
Denise “Toni” Shell. See P.A. 25–26, 32.
 13
arrest failed because the Jail officials “merely reported what
they observed, and their observations constituted probable
cause” for Amobi’s arrest and prosecution. Amobi, 882 F.
Supp. 2d at 83. Amobi counters with two arguments he
claims demonstrate want of probable cause.

First, Amobi contends his claim of innocence created a
genuine issue of material fact that should have been sent to the
jury. See Appellants’ Reply Br. at 6–7 (citing Wolter v.
Safeway Stores, 153 F.2d 641, 642 (D.C. Cir. 1946)). This
argument fails. “Once a police officer has a reasonable basis
for believing there is probable cause, he is not required to
explore and eliminate every theoretically plausible claim of
innocence before making an arrest.” Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); Panetta v.
Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (“[A]n officer’s
failure to investigate an arrestee’s protestations of innocence
generally does not vitiate probable cause.”).

Here, Officer Henley testified that he based his probable
cause finding on statements from five witnesses. Although
Amobi contends the five witnesses provided inaccurate
information, the officer had no reason to discredit the
eyewitness testimony. See Enders, 4 A.3d at 470–71 (“[T]he
relevant inquiry in a false arrest defense is not what the actual
facts may be but rather what the officers could reasonably
conclude from what they were told and what they saw on the
scene.”). Thus, Amobi’s statement that Brown struck him
first does not by itself vitiate probable cause. In sum, because
violation of § 23-581 did not result in constitutional injury, and
because Amobi failed to identify any other municipal policy,
practice, or custom that was a moving cause of his claimed
constitutional violation, his constitutional false arrest claim
against the District was properly dismissed.
 14
Amobi’s second argument is more nettlesome, but
persuasive. He asserts that, although the three Jail officials
did not carry out his arrest, they are nevertheless personally
liable for his false arrest because they withheld exculpatory
evidence from the arresting officer. “[T]o establish personal
liability in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused the deprivation
of a federal right. . . . [T]he plaintiff in a personal-capacity suit
need not establish a connection to governmental policy or
custom . . . .” Hafer v. Melo, 502 U.S. 21, 25 (1991).

Under D.C. law, “[l]iability is incurred for the procuring
of a false arrest and imprisonment if by words, one directs,
requests, invites or encourages the unlawful detention of
another.” Smith v. District of Columbia, 399 A.2d 213, 218
(D.C. 1979). “[P]rocurement of false imprisonment is the
equivalent in words or conduct to ‘Officer, arrest that man.’”
Id. (quoting RESTATEMENT (SECOND) OF TORTS, § 45A).
Accordingly, “[t]o accuse a person of committing a crime,
however slanderous it may be, is not enough to sustain a claim
of false arrest so long as the decision whether to make the
arrest remains with the police officer and is without the
persuasion or influence of the accuser.” Id. But “[t]he
weight of authority holds that an informer who knowingly
gives false information to a police officer necessarily interferes
with the intelligent exercise of the officer’s independent
judgment and discretion and thereby becomes liable for a false
arrest that later occurs.” Vessels v. District of Columbia, 531
A.2d 1016, 1020 (D.C. 1987). Logic counsels that “[t]o
consciously misstate the facts under such circumstances must
be for the purpose of inducing action by the police.” Id. For
this reason, “[a] complainant is required to disclose . . .
material facts; that is, facts material to the alleged crime
charged, facts which would have a tendency to throw light
upon whether any malicious mischief was in fact committed,
 15
and who in all probability committed them. Immaterial facts
need not be stated.” Sears Roebuck & Co. v. Gault, 175 A.2d
795, 797 (D.C. 1961)

Provided all material facts are disclosed, complainants
“may without fear of civil reprisal for an honest mistake, report
to the police or public prosecutor the facts of a crime and in
good faith, without malice, identify to the best of their
ability . . . the perpetrator of the crime.” Smith, 399 A.2d at
219. “It is settled that merely giving facts to an officer
showing that an offense has been committed and that a person
may be suspected of its commission does not comprise the tort
of false imprisonment.” Id. at 218. Cf. Smith v. Tucker, 304
A.2d 303, 308 (D.C. 1973) (“Where . . . a crime of a serious
nature has been committed and from the admitted facts or
uncontradicted evidence it appears that the injured party has
done nothing more than take reasonable and proper steps for
the discovery and apprehension of the criminal that party
merits, and should receive, the protection of the court.”
(emphasis added)).

Here, the three Jail officials did not merely tell Officer
Henley what they saw; they omitted several material facts they
either knew or should have taken reasonable and proper steps
to discover. Clay, Waldren, and White all acknowledge they
did not see what happened before the assault. Clay admitted
he “had no idea what had transpired between” Amobi and
Brown before he arrived on the scene. S.A. 231.
Nevertheless, Clay told Officer Henley that Amobi’s claim of
self-defense was “not true.” S.A. 172. Waldren conceded he
did not know what led to the “physical contact,” S.A. 372, and
that he could not “testify one way or another as [to] whether
Mr. Brown ever put his hand on Mr. Amobi,” S.A. 378.
White confessed Brown’s arms were not always visible from
the hallway as he and the other officials approached, S.A. 388,
 16
and that he had a compromised view through the metal gate
and into the sally port, id. None of these facts were disclosed
to Officer Henley. See S.A. 190. Furthermore, Waldren
knew it was “standard operating procedure to take photographs
of injured officers,” S.A. 18, and to “afford [them] medical
attention,” S.A. 16. And White knew photographs of
Amobi’s injuries had been taken and that surveillance footage
may have been available. S.A. 22–23, 177. Yet neither
officer took reasonable steps to determine whether the
photographs or medical examination of Amobi suggested
Brown had initiated the assault. In fact, White admitted he
had no reason to disbelieve Amobi’s claim of self-defense, and
Waldren and White saw that Amobi was using what they
recognized as a restraint technique taught to COs.

At the very least, the preceding facts demonstrate the Jail
officials had no “honest belief” that Amobi did not act in
self-defense. See Vessels, 531 A.2d at 1020–21; Tucker, 304
A.2d at 307. Moreover, none of the officials took reasonable
steps to secure and submit to Henley the exculpatory
statements from COs Wallace, Taylor, and Harris, despite
Waldren’s acknowledgment that it was his duty to oversee and
manage the approximately 600 COs at the Jail. Failing to
disclose the foregoing material facts evinces a lack of good
faith and is equivalent to “Officer, arrest that man.” Smith,
399 A.2d at 218. Accordingly, we reverse the grant of
summary judgment on this claim as to Clay, Waldren, and
White, but affirm as to the other parties.

3

Genuine issues of material fact persist concerning whether
probable cause existed for both the initiation and continuation
of Amobi’s prosecution. To support a malicious prosecution
claim, “[t]here must be (a) a criminal proceeding instituted or
 17
continued by the defendant against the plaintiff, (b)
termination of the proceeding in favor of the accused, (c)
absence of probable cause for the proceeding, and (d) Malice,
or a primary purpose in instituting the proceeding other than
that of bringing an offender to justice.” DeWitt v. District of
Columbia, 43 A.3d 291, 296 (D.C. 2012) (emphasis added).

In the District, a common law claim of malicious
prosecution encompasses criminal, civil, and administrative
proceedings. See Melvin v. Pence, 130 F.2d 423, 426 (D.C.
Cir. 1942). “The issue in a malicious prosecution case is not
whether there was probable cause for the initial arrest, but
whether there was probable cause for the underlying suit.”
Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C. Cir.
2007); Dellums v. Powell (Dellums II), 566 F.2d 216, 220
(D.C. Cir. 1977) (noting that in the criminal context, “the
critical event triggering liability for malicious prosecution is
the filing of an information”). Nevertheless, a malicious
prosecution claim is sustained where the proceeding is
“induced by fraud, corruption, perjury, fabricated evidence, or
other wrongful conduct undertaken in bad faith.” Moore v.
Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009); Dellums v. Powell
(Dellums I), 566 F.2d 167, 192 (D.C. Cir. 1977); Melvin, 130
F.2d at 428 (“Instigation is sufficient, when institution [of a
criminal, civil, or administrative proceeding] actually follows
from it.”). Additionally, “appearing in court and testifying
and keeping the prosecution alive” creates a genuine issue of
dispute as to whether a defendant continued a malicious
prosecution. See Viner v. Friedman, 33 A.2d 631, 632 (D.C.
1943); see also id. at 633.

Before turning to the merits, we must quickly dispense
with Appellees’ contention that the claim is time-barred.
Appellees appear to calculate the statute of limitations from the
date the malicious prosecution was initiated—June 4,
 18
2006—instead of from the date the prosecution was terminated
in Amobi’s favor—June 4, 2008. The former method is
incorrect. See Shulman v. Miskell, 626 F.2d 173, 174–75
(D.C. Cir. 1980).

Turning to the merits, we note Appellees dispute only
prongs (c) and (d)—the existence of probable cause and
whether malice was shown. 9 See Appellees’ Br. at 25–28.
We think our discussion of probable cause for the false arrest is
sufficiently analogous so as to be dispositive on the malicious
prosecution claim. The record is clear that the U.S.
Attorney’s Office relied on the Jail officials’ statements. See
Appellants’ Br. at 10 (noting that the Jail officials’ statements
were among the documents produced to Amobi during
discovery). Similarly, we think the Jail officials’ lack of good
faith and honest belief suggests the primary purpose in
instituting and continuing (by testifying against Amobi at trial)
the criminal proceeding was for some purpose “other than . . .
bringing an offender to justice.” DeWitt, 43 A.3d at 296.
Even were that not the case, it is axiomatic that malice may be
presumed from the lack of probable cause. Viner, 33 A.2d at
632. As such, the malicious prosecution claim should have
been submitted to the jury. Pitt, 491 F.3d at 504 (“The
determination of malice is exclusively for the factfinder.”).

In addition to the criminal prosecution, the record raises
genuine issues of material fact regarding whether Director
Brown and Toni Shell continued the administrative proceeding

9
The district court concluded Amobi did not allege any
defendant acted with malice. Amobi, 882 F. Supp. 2d at 82 n.4.
This is demonstrably false. Amobi’s complaint alleged each
defendant acted with malice. See P.A. 32, 34, 36–37, 39.
 19
against Amobi without probable cause.10 As recounted above,
Nguyen (the hearing officer) initially found inadequate
evidence to terminate Amobi, S.A. 209, but Director Brown
and Shell pressured her to reach a different conclusion, S.A.
43, 47, 50.11 Similarly, the Director elected to proceed with
the arbitration although the District’s attorney had detailed
numerous discrepancies in the District’s case against Amobi.
See Part I.D., supra. Of most concern is Director Brown’s
tacit ratification of Patten and Beard’s fabricated interview
memorandum. The interview memorandum, which was
drafted on the same day as Amobi’s notice of summary
dismissal, formed part of the evidentiary basis for Amobi’s
summary discharge. Brown knew this portion of evidence
was now in dispute. For these reasons, the district court erred
in granting summary judgment on the malicious prosecution
claim. Thus, we reverse the grant of summary judgment on
this claim as to Director Brown, Clay, Waldren, White, and the
District.

4

Amobi also sought relief for malicious prosecution under
42 U.S.C. § 1983, asserting that Appellees deprived him of his

10
Toni Shell was not named as a defendant in the common law
malicious prosecution claim.
11
The district court suggested Director Brown was justified in
remanding Nguyen’s decision because the “initial written
recommendation was quite conclusory in nature.” Amobi, 882 F.
Supp. 2d at 82. We are not convinced. Each recommendation was
of equal length, compare S.A. 201–02, with S.A. 208–09, and
Nguyen was not given any new evidence to consider in her second
recommendation, see S.A. 47. Yet, despite the seemingly cursory
analysis of both recommendations, Director Brown took issue only
with the first.
 20
constitutional rights by initiating criminal proceedings against
him without probable cause. As with the common law claim,
disputed issues of material fact exist here, too. “[M]alicious
prosecution is actionable under 42 U.S.C. § 1983 to the extent
that the defendant’s actions cause the plaintiff to be
unreasonably ‘seized’ without probable cause, in violation of
the Fourth Amendment.” Pitt, 491 F.3d at 511.
Nevertheless, because the relevant conduct at issue in this case
occurred before we issued our decision in Pitt, clearly
establishing malicious prosecution as a violation of
constitutional rights, qualified immunity is appropriate here.
That the Defendants failed to make this argument in their briefs
in this court is of no moment because they raised the issue in
the district court. See P.A. 72, 82–85; see also Jones v.
Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009) (“[W]e may
affirm a judgment on any ground the record supports and that
the opposing party had a fair opportunity to address”).
Accordingly, we affirm the district court’s grant of summary
judgment as to all Defendants on Amobi’s constitutional
malicious prosecution claim.

5

Amobi argues the district court erred in holding his
common law defamation claim is time-barred. He is wrong.
D.C. Code § 12-301(4) establishes a one-year statute of
limitations for common law defamation claims. Amobi filed
his complaint on June 4, 2008, two years after his defamation
injury accrued. Nevertheless, Amobi maintains the common
law claim is not time-barred because “Defendants’ defamatory
statements and reckless disregard for the truth were
continuing,” Appellants’ Reply Br. at 13, and therefore tolled
the statute of limitations. We are not persuaded.
 21
“The statute of limitations on a tort claim ordinarily begins
to run when the plaintiff sustains a tortious injury . . . .”
Beard v. Edmondson & Gallagher, 790 A.2d 541, 546 (D.C.
2002). “At the latest . . . a cause of action accrues for
limitations purposes when the plaintiff knows or by the
exercise of reasonable diligence should know (1) of the injury,
(2) its cause in fact, and (3) of some evidence of wrongdoing.”
Id. Here, it is undisputed that, as of June 4, 2006, Amobi
knew of his injury and the role Appellees played in causing it.
The question is whether the continuation of the criminal
litigation delayed the accrual of Amobi’s cause of action. “A
‘continuous tort’ can be established for statute of limitations
purposes by showing (1) a continuous and repetitious wrong,
(2) with damages flowing from the act as a whole rather than
from each individual act, and (3) at least one injurious act . . .
within the limitation period.” Id. at 547–48. Yet, under D.C.
law, continuous defamatory statements do not toll the statute of
limitations. Id. The only exception—not applicable
here—is “if the continuing tort has a cumulative effect, such
that the injury might not have come about but for the entire
course of conduct.” Id. at 548 (emphasis in original). Thus,
because Amobi knew, as of June 4, 2006, that he had been
injured, the statute of limitations began to run and was not
tolled.

6

Amobi fares no better on his constitutional defamation
claim. As a threshold matter, the parties dispute whether
Amobi adequately pled a constitutional defamation claim
under § 1983. We need not resolve the dispute however,
because even assuming the claim is adequately pled, Amobi is
not entitled to further relief.
 22
In his reply brief, Amobi claims to have pled a
reputation-plus defamation claim under § 1983. Appellants’
Reply Br. at 14. Amobi asserts his defamation “stemmed
from the constitutional violation of his due process rights by
depriving him of his property interest in his employment.” Id.
at 14–15. A plaintiff may be able to state a due process claim
based on the allegedly defamatory actions of government
officials if “the defamation [is] accompanied by a discharge
from government employment or at least a demotion in rank
and pay.” Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir.
1983). This type of action “is usually termed a
reputation-plus claim.” O’Donnell v. Barry, 148 F.3d 1126,
1140 (D.C. Cir. 1998). The remedy for an established
reputation-plus claim is “an opportunity to refute the charge,”
one which will “provide the person an opportunity to clear his
name.” Codd v. Velger, 429 U.S. 624, 627 (1977);
McCormick v. District of Columbia, No. 12-7115, 2014 WL
2178831, at *9 (D.C. Cir. May 27, 2014). Here, Amobi had
an opportunity to refute the charges at both a criminal judicial
proceeding and an administrative arbitration. This was
sufficient. Thus, even assuming Amobi adequately pled a
claim for constitutional defamation, he received all the process
he was due, and the claim is therefore moot.12

12
Amobi also was afforded adequate pre-termination due process.
The Supreme Court has suggested that the way to ensure
pre-termination due process rights are preserved is to suspend an
employee accused of detrimental conduct with pay. See Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 544–45 (1985); Munoz v.
Bd. of Trs. of Univ. of Dist. of Columbia, 427 F. App’x 1, 3 (D.C. Cir.
2011). That is exactly what happened here. Clay ordered Amobi
placed on paid administrative leave, see P.A. 45, 49, and Amobi’s
termination was not finalized until August 29, 2006, see S.A. 203.
In any event, in the district court Amobi argued only that his
termination infringed his procedural due process rights because
Director Brown’s “remand” of Nguyen’s decision violated the CBA.
 23
7

We turn finally to Amobi’s IIED claim. The district court
concluded there was “no evidence that any of the defendants
engaged in extreme or outrageous conduct or that Amobi
suffered severe emotional distress.” Amobi, 882 F. Supp. 2d
at 84. We disagree.

“Establishing a prima facie case of intentional infliction
of emotional distress requires a showing of (1) extreme and
outrageous conduct on the part of the defendants, which (2)
intentionally or recklessly (3) causes the plaintiff severe
emotional distress.” Futrell v. Dep’t of Labor Fed. Credit
Union, 816 A.2d 793, 808 (D.C. 2003). The conduct alleged
must be “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency and to be
regarded as atrocious, and utterly intolerable in a civilized
community.” Bernstein v. Fernandez, 649 A.2d 1064, 1075
(D.C. 1991). “Where reasonable persons may differ, it is for
the jury, subject to the control of the court, to determine
whether, in the particular case, the conduct has been
sufficiently extreme and outrageous to result in liability.”
Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998).

Amobi argues that our affirmance of a jury verdict for
IIED in Pitt is instructive in this case. We concur. In Pitt,
the plaintiff was falsely arrested for robbery although both
victims of the crime told the police that the plaintiff was not the
perpetrator. 491 F.3d at 502. The police affidavit
subsequently submitted to the prosecutor’s office contained no

See P.A. 91. Because the collective bargaining agreement clearly
authorized the remand, and because Amobi failed to argue that the
pre-termination proceedings were otherwise constitutionally
defective, we affirm the district court’s dismissal of this claim.
 24
mention of the victims’ negative identifications, despite
containing inconsequential details about the robbery and the
stop of plaintiff’s car. Id. at 504. The affidavit also
contained one unambiguously false statement—that the
plaintiff was observed “getting into a car within seconds after a
building employee saw the robber leave the building,” when, in
fact, “the perpetrator had been gone for at least eight minutes
by the time the police spotted [the plaintiff] in the area.” Id.
In addition, there was a dispute about whether the officers’
notes describing the show-up identification in detail was
included in the case file submitted to prosecutors; the officer
did not recognize the notes and did not know if those had been
shown to the prosecutors. Id. Based upon this evidence, we
affirmed the jury’s verdict, noting the “material
misstatements” and “glaring omissions” in the arrest report and
affidavit submitted to prosecutors. Id. at 504, 506.

As recounted above, the facts here bear some resemblance
to those in Pitt. As in Pitt, Clay, Waldren, and White’s
incident report contained several glaring omissions, and at
least one false statement, which was later ratified by Director
Brown. From these facts, we think it clear that genuine issues
of material fact exist and that it was for the jury to determine
whether the conduct has been sufficiently extreme and
outrageous to result in liability. For these reasons, the grant of
summary judgment is reversed as to Director Brown, Clay,
Waldren, White, and the District.

****

The district court’s order is affirmed in part, reversed in
part, and remanded for further proceedings consistent with this
opinion.

So ordered.