                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


MILTON N. WARD III,                 )
                                    )
               Plaintiff,           )
                                    )
            v.                      )                Civ. Action No. 13-1411 (ESH)
                                    )
STEPHEN VOGEL,                      )
                                    )
               Defendant.           )
___________________________________ )


                         MEMORANDUM OPINION AND ORDER

       Plaintiff, proceeding pro se and in forma pauperis, sues a former officer of the District of

Columbia Metropolitan Police Department (“MPD”), Stephen Vogel, for allegedly violating his

right under the Fourth Amendment to be free from unreasonable searches and seizures. (See

Compl. [Dkt. # 4].) He seeks a total of $1,417,200 in damages. (Id. at ECF p. 8.) The record

reflects the problems plaintiff and the court officers have encountered in attempting to serve

Vogel with process. Although the Clerk’s latest docket entry states that service was “executed”

upon Vogel (Dkt. # 27), the actual document does not support this text since the postal card that

was returned to the Marshals Service does not include Vogel’s signature or the signature of an

individual with legal authority to act on Vogel’s behalf. Thus, no basis exists for finding that

Vogel has been properly served.

       The Court, however, is required to dismiss a case “at any time” it determines that the

complaint “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

Having reviewed the Complaint in light of that statutory duty, the Court is inclined to dismiss

this action under the prior-invalidation requirement established in Heck v. Humphrey, 512 U.S.

477 (1994), but will first give plaintiff the opportunity to explain why dismissal is unwarranted.
I. Background

       The relevant allegations in the Complaint are as follows. On March 27, 2011, plaintiff

was involved in a three-vehicle accident in the northwest quadrant of the District of Columbia.

Defendant was one of the officers who appeared at the scene and spoke with plaintiff. Plaintiff

gave defendant his registration and driver’s license but could not locate his insurance card.

“While searching for the insurance card, [plaintiff] was standing outside the driver’s side front

door, with [defendant] standing beside [him].” Defendant “became impatient and walked around

to the other side of the vehicle[,] opened the front passenger door[,] and started searching

[plaintiff’s] vehicle.” (Compl., ECF p. 6 ¶ 2.) Defendant then “opened [the] dashboard glove

compartment and found [plaintiff’s] loaded Glock 9mm pistol along with an extra magazine

loaded with 10 rounds.” (Id.) Defendant placed plaintiff “under arrest for carrying a pistol

without a license from the District of Columbia, which is a felony.” (Id. ¶ 3.) Plaintiff “was

subsequently indicted on a total of three felonies related to the weapon and ammunition.” (Id.)

He was detained for five days and thereafter lost his job as a contractor for the Office of the

Director of National Intelligence, where he “held a Top Secret security clearance.” (Id. ¶ 5.) In

addition, plaintiff’s vehicle was seized and “eventually repossessed.” (Id.)

       Plaintiff alleges: “I specifically asked [defendant] not to open my glove compartment

before he did so. [Defendant] had no probable cause to search [his] vehicle. [Defendant] filed a

false report stating that he observed the gun after [plaintiff] opened the glove compartment.” (Id.

¶ 4.) Court records show that on June 24, 2011, plaintiff pled guilty in the Superior Court of the

District of Columbia to Possession of Unregistered Firearm/Unlawful Possession of a Firearm or

Destructive Device and was sentenced to nine months’ probation. See District of Columbia v.

Ward, No. 2011 CF2 005519 (Super. Ct. Jun. 24, 2011).



                                                  2
II. The Heck Requirement

       In Heck v. Humphrey, the Supreme Court held that:

          [I]n order to recover damages for allegedly unconstitutional conviction or
          imprisonment, or for other harm caused by actions whose unlawfulness
          would render a conviction or sentence invalid, a § 1983 plaintiff must prove
          that the conviction or sentence has been reversed on direct appeal, expunged
          by executive order, declared invalid by a state tribunal authorized to make
          such determination, or called into question by a federal court's issuance of a
          writ of habeas corpus . . . . A claim for damages bearing that relationship to
          a conviction or sentence that has not been so invalidated is not cognizable
          under § 1983.

512 U.S. at 486–87 (footnote omitted). Heck applies if “a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence.” Id. at 487.

       Plaintiff omits from his complaint filed in March 2013 the crucial fact of his conviction

in June 2011, but the Court can (and will) take “judicial notice of facts on the public record.”

Covad Comm’ns Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (citation and

internal quotation marks omitted); see Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44,

49-50 (D.D.C. 2012) (taking judicial notice of “court records in related proceedings”). If

plaintiff were to prevail on his Fourth Amendment claim under the circumstances presented, the

underlying conviction could not stand. See Harper v. Jackson, 293 Fed. Appx. 389, 392 (6th Cir.

2008) (“Heck bars § 1983 Fourth Amendment claims where the contested search produced the

only evidence supporting the conviction and no legal doctrine [i.e., independent source,

inevitable discovery, harmless error, good faith] could save the evidence from exclusion.”)

(emphasis in original); Ballenger v. Owens, 352 F.3d 842, 846 (4th Cir. 2003) (“When evidence

derived from an illegal search would have to be suppressed in a criminal case if the judgment in

the § 1983 claim were to be applied to the criminal case and the suppression would necessarily

invalidate the criminal conviction, the stated principle of Heck would apply.”).



                                                 3
       Accordingly, it is

       ORDERED that by May 15, 2014, plaintiff shall explain in writing why this case should

not be dismissed in accordance with Heck v. Humphrey. Plaintiff’s failure to comply by this

deadline will result in dismissal of the case without prejudice for the reasons already stated.



                                                      _________/s/____________
                                                      ELLEN SEGAL HUVELLE
DATE: April 9, 2014                                   United States District Judge




                                                  4
