Epps v. Gray

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

___________________________________
)
LARRY D. EPPS, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1126 (RC)
)
MAYOR VINCENT GRAY, et al., )
)
Defendants. )
___________________________________ )

MEMORANDUM OPINION

This matter is before the Court on Defendant Michael Kelly’s Motion to Dismiss [ECF

No. 10] and Defendants District of Columbia Housing Authority, Officer Markwell, Sergeant

Street, Officer Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in the

Alternative Motion for Summary Judgment [ECF No. 12]. 1 For the reasons discussed below, the

former will be granted and the latter will be granted in part and denied in part without prejudice.

1
Plaintiff’s Motion to Amend and Dismiss the Complaint Against Two of the Defendants
Listed in Plaintiff’s 43 U.S.C. Section 1983 Mayor Vincent Gray and Attorney General Carnston
Mitchell for Failure to Properly State a Claim [ECF No. 16] and Mayor Vincent Gray and the
District of Columbia’s Motion to Dismiss [ECF No. 5] will be granted. As plaintiff has
recognized, see generally Pl.’s Mot., the District of Columbia Housing Authority is a legal entity
distinct from the District government, see D.C. Code § 6-202. Therefore, the District of
Columbia is not liable for any damages caused by the District of Columbia Housing Authority or
the District of Columbia Housing Authority Police Department. See Hoffman v. District of
Columbia, 730 F. Supp. 2d 109, 116 (D.D.C. 2010) (concluding that, because “DCHA is an
independent agency legally distinct from the District government,” a DCHA hearing officer’s
“determinations do not have claim or issue preclusive effect against the District”). For ease of
case administration, the case caption remains unchanged.
1
 I. BACKGROUND

The events giving rise to plaintiff’s claims began on August 12, 2011, when Sgt. Willie

Street of the District of Columbia Housing Authority Police Department (“DCHAPD”)

“intercepted” plaintiff near the intersection of Division Avenue and Blaine Street in Northeast

Washington. Complaint (“Compl.”) [ECF No. 1] ¶ 13; see Plaintiff’s Affidavit (“Pl.’s Aff.”) at 1

[ECF No. 1 at 18].

A. Plaintiff’s Allegations

According to plaintiff, he “was minding his business and [walking] in the neighborhood

where he is a life-long resident,” Compl. ¶ 6, when Sgt. Street “ventured into the surrounding

residential neighborhood of a Housing project,” id. ¶ 17, that is, “outside of [the DCHAPD’s]

primary assigned area of duty,” id. ¶ 6.

Sgt. Street, plaintiff alleged, “was driving a [DCHA] Police car[,] made a U turn on

[D]ivision Ave[nue], and exited his police car and then demanded that Plaintiff product [sic]

some identification.” Id. ¶ 13. “Plaintiff’s immediate response to this command was” to ask

why Sgt. Street had stopped him. Id. Sgt. Street “responded by saying that he was asking the

questions.” Id. Plaintiff “then proceeded to produce [his] identification,” which Sgt. Street used

“to run the plaintiff’s name for intelligence related to any warrants.” Id. “Sgt[.] Street requested

back up assistance from fellow officers.” Id. “While awaiting the return of [his] identification,”

plaintiff allegedly “reach[ed] into [his] top left shirt pocket to retrieve a cigarette.” Compl. ¶ 13.

The other DCHAPD officers were identified as Benjamin Markwell, Michael Brown, and

Reginal Strother. See Defendants District of Columbia Housing Authority, Officer Markwell,

Sergeant Street, Officer Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in

the Alternative Motion for Summary Judgment (“Defs.’ Mot.”) [ECF No. 12], Exs. B (Markwell

2
Decl.) ¶¶ 7-8, C (Brown Decl.) ¶¶ 7-8 & D (Strother Decl.) ¶ 8. According to plaintiff, upon

arrival they “circled . . . and attacked” him, “put [him] into a full nelson chock [sic] hold and

lift[ed him] up off the ground.” Id. During this encounter, plaintiff’s “knee was skinned against

. . . a brick wall.” Id. Further, he alleged, “[t]he contents of [his] left shirt-pocket were shook

out of the pocket with . . . repeated hitting against [his] upper chest.” Id. Among those contents

were “two plastic bags.” Id. Plaintiff was then arrested and charged with possession of heroin.

Id.; see id., Ex. (Information dated August 13, 2011) [ECF No. 1 at 48]. The criminal charge

was dismissed for want of prosecution on December 8, 2011. Id. ¶ 13.

Plaintiff was on parole at the time of his arrest on August 12, 2011. Id. Apparently

based on this arrest, the United States Parole Commission issued a parole violator warrant on

September 9, 2011, causing plaintiff’s return to custody on September 20, 2011 upon execution

of the warrant. Id.; see id. ¶¶ 8-9. Notwithstanding dismissal of the criminal charge, the Parole

Commission conducted a revocation hearing on January 18, 2012 and revoked plaintiff’s parole.

Id. ¶ 9. Thereafter, plaintiff “was made to endure 18 months of incarceration for noncriminal

administrative infractions” of the conditions of his parole. Id. ¶ 13. Further, plaintiff alleged, he

lost Social Security benefits as a result of the Parole Commission’s actions, id. ¶ 10, and he

sustained “physical abuse and mental anguish,” for which he demands compensatory and

punitive damages, see id. at 12-13.

B. Defendants’ Representations

According to defendants, on August 12, 2011, “all DCHA police officers were on patrol

as part of the Metropolitan Police Department and its . . . All Hands On Deck (‘AHOD’)

initiative,” Defs.’ Mot., Ex. E (Street Decl.) ¶ 4, which meant that “all available police officers

and recruits with the Metropolitan Police Department and DCHAPD [were] called to duty and

3
assigned to street patrol citywide for 48 hours,” id., Ex. E ¶ 5; see id., Exs. B ¶¶ 3-5, C ¶¶ 3-5 &

D ¶¶ 4-6.

Sgt. Street stated that he observed plaintiff “emerge from an alley at Division Avenue and

Blaine Street NE” walking towards his vehicle, id., Ex. E ¶ 8, and he “made a contact with

[plaintiff] shortly thereafter,” id., Ex. E ¶ 9. According to Sgt. Street, he asked plaintiff whether

he would consent to a pat down for weapons; plaintiff complied. Id., Ex. E ¶¶ 10-11. While Sgt.

Street was “patting down [plaintiff’s] upper body, [plaintiff] jumped as if he [were] startled,” id.,

Ex. E ¶ 12, at which time Sgt. Street asked plaintiff “to place his hands on a wall,” in a position

where his “upper body was slightly bent over,” id., Ex. E ¶ 13. “As the pat down continued, two

plastic baggies containing a substance fell from [plaintiff’s] shirt pocket.” Id., Ex. E ¶ 14. Sgt.

Street then “called for backup to have the substance field tested.” Id., Ex. E ¶ 15. “Officers

Brown and Markwell arrived on the scene[,] and field tested the substance [which] tested

positive for heroin.” Id., Ex. E ¶ 16. Plaintiff was arrested for possession of heroin. Id., Ex. E ¶

17.

Sgt. Street averred that none of the officers “use[d] physical force with [plaintiff].” Id.,

Ex. E ¶ 18. “There was no need to get physical because [plaintiff] complied with all orders given

to him.” Id., Ex. E ¶ 19. At no time, declared Sgt. Street, did plaintiff “complain that he was

injured or ask for medical treatment.” Id., Ex. E ¶ 20. Officer Strother’s account of the events

was consistent with Sgt. Street’s representations. See generally id., Ex. D ¶¶ 8-20. He declared

that “[n]o DCHA police officer used physical force” with plaintiff, id., Ex. D ¶ 19, because

plaintiff “remained cooperative throughout” their encounter, id., Ex. D ¶ 20.

According to Officers Markwell and Brown, they were called to the scene in order to

conduct a field test of the substance found in the baggies that fell from plaintiff’s pocket. See id.,

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Exs. B ¶¶ 8-9 & C ¶¶ 8-9. The substance tested positive for heroin. Id., Exs. B ¶ 9 & C ¶ 9.

Neither officer spoke to, had physical contact with, or effected the arrest of plaintiff. Id., Exs. B

¶¶ 11-13 & C ¶¶ 11-13.

II. DISCUSSION

A. Defendant DCHA’s Motion to Dismiss

The DCHA defendants treat the complaint as “nothing more than an amalgam of

grievances in search of a theory of liability.” Defs.’ Mem. at 1. They move to dismiss on the

ground that it fails to comply with Rule 8(a) of the Federal Rules of Civil Procedure. See id. at

4-5. According to defendants, “it is difficult to determine the cause of action alleged by

[plaintiff] and to which [d]efendants he attributes his various allegations.” Id. at 4. Rather, they

contend, plaintiff “baldly states that certain actions, although it is impossible to determine which

actions and by which actor, violated certain protections afforded to him” under the Fourth,

Eighth, Thirteenth and Fourteenth Amendments to the United States Constitution. Id. at 5.

Defendants expect far more of a pro se litigant than is reasonable. See, e.g., Richardson

v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519,

520–21 (1972) (per curiam)). Admittedly, based on the facts alleged, neither the Eighth, the

Thirteenth nor the Fourteenth Amendment applies in this case. However, in light of plaintiff’s

allegations of an “illegal search and seizure/stop and frisk by police,” see Compl. ¶ 8, an

unlawful arrest by DCHAPD officers without probable cause, see id. ¶¶ 6, 8, 13, the DCHA’s

failure to train and supervise its officers, see id. ¶¶ 6-8, 15, 17, and the officers’ use of excessive

force, see id. ¶ 13, the complaint is reasonably construed as one brought under 42 U.S.C. § 1983

alleging violations of plaintiff’s Fourth Amendment rights. See, e.g., Steele v. District of

Columbia Housing Auth., No. 02-1420, 2006 WL 335770, at *5 (D.D.C. Feb. 14, 2006) (“A

5
citizen who alleges that he . . . has been subjected to an unreasonable search or seizure, or

excessive force in the course of an arrest or seizure in violation of the Fourth Amendment, may

seek redress under Section 1983.”); Reed v. District of Columbia, 474 F. Supp. 2d 163, 170

(D.D.C. 2007) (noting that “[t]he failure to train or supervise a city employee can amount to an

unconstitutional policy when it can be said that the failure amounts to deliberate indifference

towards the constitutional rights of persons with whom the officials come in contact”). A critical

shortcoming of the complaint is its failure to allege adequately a Fourth Amendment claim

against the DCHA.

In order to hold the DCHA liable for a constitutional violation, plaintiff “must show ‘not

only a violation of his rights under the Constitution or federal law, but also that the [DCRA’s]

custom or policy caused the violation.’” Feirson v. District of Columbia, 506 F.3d 1063, 1066

(D.C. Cir. 2007) (citing Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004)).

“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically have the force

of law.” Connick v. Thompson, __ U.S. __, __, 131 S. Ct. 1350, 1359 (2011).

With respect to the first prong of this analysis, it is presumed that plaintiff has a right to

be free from unlawful searches and seizures and from police officers’ use of excessive force.

See, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989) (treating an “excessive force claim

aris[ing] in the context of an arrest or investigatory stop of a free citizen . . . as one invoking the

protections of the Fourth Amendment”); Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987)

(“It is well settled that an arrest without probable cause violates the fourth amendment.”).

With respect to the second prong, plaintiff must allege “that a policy or custom of the

[DCRA] caused the constitutional violation alleged under the first prong.” Baker v. District of

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Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 694 (1978)); see Elkins v. District of Columbia, 690 F.3d 554,

564 (D.C. Cir. 2012) (“Case law has established that a municipality can be held liable only for

constitutional violations committed by an employee who acted according to a city ‘policy or

custom’ that was ‘the moving force’ behind the violation.” (citing Monell, 436 U.S. at 694)). In

other words, there must be an affirmative link between the municipal policy, custom or practice

and the alleged constitutional violation. Connick, __ U.S. at __, 131 S. Ct. at 1359; see Warren,

353 F.3d at 39 (noting ways to demonstrate that custom or policy caused claimed violation of

constitutional rights). “Respondeat superior or vicarious liability will not attach under § 1983,”

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95), and,

therefore, the DCHA cannot be held liable solely on account of the actions of its employees, see

Harris, 489 U.S. at 385.

Wholly absent from plaintiff’s complaint are factual allegations regarding the existence

or implementation of a DCHA policy, custom or practice resulting in a constitutional violation.

This pleading defect is fatal, and plaintiff’s constitutional claims against the DCHA fail. See,

e.g., Jackson v. District of Columbia, 949 F. Supp. 2d 257, 262 (D.D.C. 2013) (dismissing

complaint which “offers no factual allegations as to what policy, rule, practice or custom cause

the violation of his constitutional rights”); Faison v. District of Columbia, 907 F. Supp. 2d 82, 85

(D.D.C. 2012) (dismissing § 1983 claim where “complaint sets forth no factual allegations

regarding the existence and enforcement of a municipal policy, custom or practice that directly

caused a violation of his Fifth Amendment right to due process”), aff’d per curiam, No. 13-7021,

2013 WL 5975981 (D.C. Cir. Oct. 23, 2013).

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 B. Defendant Michael Kelly’s Motion to Dismiss

Plaintiff identifies Michael Kelly as the Executive Director of the DCHA. Compl. ¶ 6. It

does not appear, however, that defendant Kelly held this position at the time of plaintiff’s arrest:

6. Michael Kelly was the Executive Director of DCHA from 2000
to 2009.
7. Michael Kelly is no longer an employee of DCHA.
8. Michael Kelly was not an employee of the DCHA on August
12, 2011 at the time of the incident either.

Defendant Michael Kelly’s Motion to Dismiss (“Kelly Mot.”) [ECF No. 10], Ex. A (Mosley

Decl.) ¶¶ 6-8. 2 Service of process on Kelly was not effected properly, as no DCHA employee

would accept service on his behalf. Id., Ex. A ¶¶ 5, 9. Accordingly, Kelly moves to dismiss

under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process.

Id. at 3-4 (page numbers designated by the Court).

Ordinarily, a plaintiff who is proceeding pro se and in forma pauperis relies on the Clerk

of Court and the United States Marshals Service to issue summonses and to serve the defendants.

See 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3). In such circumstances, a plaintiff

generally is not penalized for a failure to effect proper service. See, e.g., Harrod v. U.S. Parole

Comm’n, No. 13-0774, 2014 WL 606196, at *2 n.1 (D.D.C. Feb. 18, 2014) (denying motion to

dismiss under Rule 12(b)(5)); Harris v. Fulwood, __ F. Supp. 2d __, __, 2013 WL 5824422, at

*4 (D.D.C. Oct. 30, 2013) (“Since plaintiff is proceeding in forma pauperis and, thus, relying on

the court officers to effect proper service, see 28 U.S.C. § 1915(d), the court will not penalize

plaintiff by dismissing the complaint [under Rules 12(b)(2) and 12(b)(5)] without first allowing

him to provide additional service information that might cure this defect.”). Even if plaintiff had

2
Defendant’s counsel represents that, “[o]n August 12, 2011, Adrianne Todman was serving as
the Executive Director of DCHA.” Kelly Mot. at 4.
8
named the proper Executive Director of the DCHA and if service of process had been sufficient,

dismissal as to Kelly still would be warranted.

Plaintiff sues Kelly “in his professional official capacity.” Compl. ¶ 6. A suit under §

1983 against a municipal official in his official capacity is “equivalent to a suit against the

municipality itself.” Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (citing

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). In other words, the suit “generally

represent[s] only another way of pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 690 n.55. “Based upon the understanding that it is duplicative to

name both a government entity and the entity’s employees in their official capacity, courts have

routinely dismissed corresponding claims against individuals named in their official capacity as

redundant and an inefficient use of judicial resources.” Robinson v. District of Columbia, 403 F.

Supp. 2d 39, 49 (D.D.C. 2005) (internal quotation marks and citations omitted).

Here, plaintiff names the DCHA as a defendant to this action, and the DCHA is “an

independent authority of the District Government,” D.C. Code § 6-202(a), which can “[s]ue and

be sued in its own name,” id. § 6-203(11). Plaintiff’s claims against DCHA’s Executive Director

in his official capacity are redundant, and defendant Kelly’s motion to dismiss will be granted. 3

See Jeffries v. District of Columbia, 917 F. Supp. 2d 10, 29 (D.D.C. 2013) (dismissing

“redundant [and] inefficient” claims against Chief of the Metropolitan Police Department in her

official capacity); Robinson, 403 F. Supp. 2d at 49-50 (granting defendant’s motion for summary

judgment “to the extent that it seeks to have Plaintiff’s claims against [former Executive Deputy

Chief of the Metropolitan Police Department] in his official capacity dismissed from this suit”).

3
Likewise, plaintiff’s claims against Joel Maupin, Chief of the DCHAPD, in his official
capacity, see Compl. ¶ 7, will be dismissed.
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 C. The DCHAPD Officers’ Motion for Summary Judgment

1. Summary Judgment Standard

The court grants summary judgment if defendants “show[] that there is no genuine

dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). To this end, defendants are expected to inform the district court of the basis of

their motion and to identify the portions of the record on which they rely. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Plaintiff as the opposing party cannot rely on “mere

allegations or denials” in response to defendants’ showing. Burke v. Gould, 286 F.3d 513, 517

(D.C. Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal

quotation marks omitted). He, too, must refer to particular materials in the record either to

support his own assertions of fact or to oppose defendants’ assertions. See Fed. R. Civ. P.

56(c)(1). “[C]onclusory allegations unsupported by factual data will not create a triable issue of

fact.” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal

quotation marks and citations omitted). “At the summary judgment stage, facts must be viewed

in the light most favorable to [plaintiff] only if there is a genuine dispute as to those facts,” and

where “the record taken as a whole could not lead a rational trier of fact to find for [plaintiff],

there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citations and

internal quotation marks omitted).

2. Qualified Immunity

“To the extent that [p]laintiff has successfully alleged any constitutional violations

against any of the individual officers,” Defs.’ Mem. at 8-9, they assert qualified immunity as a

defense, id. at 9. For purposes of this discussion, because plaintiff has sworn “under penalty of

perjury, that the . . . statements of facts alleged in [his] 42 U.S.C.A. 1983 civil rights action

10
complaint [are] true and correct to the best of [his] knowledge,” Pl.’s Aff. at 1, the Court treats

the verified pleading as an affidavit in opposition to defendants’ motion for summary judgment,

see Neal v. Kelly, 963 F.2d 453, 457-58 (D.C. Cir. 1992), insofar as its assertions are based on

plaintiff’s personal knowledge, set forth facts that would be admissible in evidence, or are

matters about which plaintiff is competent to testify, see Fed. R. Civ. P. 56(c)(4).

“[G]overnment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to

hold public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). This protection is afforded to police officers

whether their “error is a mistake of law, a mistake of fact, or a mistake based on mixed questions

of law and fact.” Id. (citations and internal quotation marks omitted). Thus, “all but the plainly

incompetent or those who knowingly violate the law” may enjoy the protection of qualified

immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-step analysis

for resolving government officials’ qualified immunity claims. First, the court decides “whether

the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” Id.

at 201. If the plaintiff satisfies this first step, the court then decides whether the right at issue

was clearly established at the time of the defendant’s alleged misconduct. Id. The sequence of

this analysis is not mandatory, however, and courts may “exercise their sound discretion in

11
deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

For purposes of this discussion, it is presumed that the Fourth Amendment protects

plaintiff from unlawful searches and seizures and from excessive force in effecting an arrest.

And it is presumed that these rights were clearly established on August 12, 2011. The central

question, then, is whether the undisputed material facts presented, taken in the light most

favorable to plaintiff, show that the conduct of defendants Street, Strother, Markwell and Brown

violated plaintiff’s Fourth Amendment rights.

“[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of

persons.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Rather, a person is ‘“seized’ within the

meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave.” United States

v. Mendenhall, 446 U.S. 544, 554 (1980) (footnote omitted); see Gomez v. Turner, 672 F.2d 134,

141 (D.C. Cir. 1982) (“[I]n this circuit the test of whether a seizure has occurred is whether a

reasonable person, innocent of any crime, would have felt free to walk away under the

circumstances.”). If, for example, an officer “merely engage[s] in conversation with a citizen,”

he “does not thereby create the requisite restraint on liberty which would constitute an arrest.”

Coates v. United States, 413 F.2d 371, 374 (D.C. Cir. 1969) (footnote omitted). But a person can

be “seized” by physical force, or if no physical force is employed, “by a show of authority to

which the person submits.” Flythe v. District of Columbia, __ F. Supp. 2d __, __, 2013 WL

5964008, at *6 (D.D.C. Nov. 8. 2013) (citation omitted).

The standard for arrest is probable cause, see Gerstein v. Pugh, 420 U.S. 103, 112

(1975)), which denotes “facts and circumstances within the officer’s knowledge that are

12
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is committing, or is about to commit an

offense,” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted). It is a “practical,

nontechnical conception,” Brinegar v. United States, 338 U.S. 160, 176 (1949), factoring in “the

factual and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act,” id. at 175. “Whether probable cause exists depends upon the reasonable

conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing Maryland v. Pringle, 540 U.S. 366, 371

(2003)). The arresting officer’s state of mind is not relevant in determining whether probable

cause exists, Devenpeck, 543 U.S. at 152, and his “subjective motive does not invalidate

objectively reasonable behavior under the Fourth Amendment,” Oberwetter v. Hilliard, 680 F.

Supp. 2d 152, 167 (D.D.C. 2010).

“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has been or is being committed.”

Devenpeck, 543 U.S. at 152 (citations omitted). If an arrest is justified, then the arresting officer

is protected by qualified immunity and the damages action against him fails. See Saucier, 533

U.S. at 207; see also Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that “the defense of good

faith and probable cause . . . is . . . available to the officers in the action under § 1983”).

There remain genuine issues of material fact in dispute as to seizure, search, arrest and

use of force. Defendants’ declarations shed no light on the reasons for approaching plaintiff or

the circumstances surrounding their encounter with plaintiff. Plaintiff alleges that Sgt. Street,

while in uniform and driving a police vehicle, initiated contact with him, declined to entertain his

questions, and promptly summoned to the scene additional officers who allegedly surrounded

13
him. A reasonable person in plaintiff’s position could have concluded that he was not free to

leave, even without the officers’ use of physical force at the outset. The officers’ assertions that

plaintiff consented to and complied with the pat down are inconsistent with plaintiff’s repeated

assertions of an unlawful search. It is not clear which officer(s) had actual physical contact with

plaintiff or which officer(s) effected plaintiff’s arrest for possession of heroin. Plaintiff’s version

of events implicates all of the officers, while defendants maintain that Officers Brown and

Markwell neither touched nor arrested plaintiff. Strother’s level of involvement is unclear.

Lastly, the two sides present vastly different descriptions of the force exerted: either no physical

force was used at all, or the officers used sufficient force to cause injury to plaintiff’s knee and to

shake loose the contents of plaintiff’s shirt pocket. Without further factual development by the

parties, the Court cannot determine whether these defendants are entitled to qualified immunity.

III. CONCLUSION

For the reasons discussed above, the Court will grant Mayor Vincent Gray and the

District of Columbia’s Motion to Dismiss [ECF No. 5], Defendant Michael Kelly’s Motion to

Dismiss [ECF No. 10], and Plaintiff’s Motion to Amend and Dismiss the Complaint Against

Two of the Defendants Listed in Plaintiff’s 43 U.S.C. Section 1983 Mayor Vincent Gray and

Attorney General Carnston Mitchell for Failure to Properly State a Claim [ECF No. 16].

Defendants District of Columbia Housing Authority, Officer Markwell, Sergeant Street, Officer

Strother, Officer Brown and Chief Maupin’s Motion to Dismiss, or in the Alternative Motion for

Summary Judgment [ECF No. 12], will be granted in part and denied in part. An Order

accompanies this Memorandum Opinion.

/s/
RUDOLPH CONTRERAS
United States District Judge
DATE: July 31, 2014

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