                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

James Parker,                         :
                                      :
                Plaintiff,            :
       v.                             :               Civil Action No. 09-0568 (CKK)
                                      :
Officer Brown et al.,                 :
                                      :
                Defendants.           :



                                   MEMORANDUM OPINION

       In this action brought pro se, plaintiff accuses an officer of the United States Park Police

of violating his constitutional rights during a traffic stop and his subsequent arrest. He seeks

$250,000 in damages.1 Defendant moves to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a

claim upon which relief can be granted. Upon consideration of the parties’ submissions, the

Court finds that defendant is immune from this lawsuit and, thus, will grant his motion to dismiss

under Rule 12(b)(6). Consequently, the Court will deny plaintiff’s pending motion to appoint

counsel.

                                          I. BACKGROUND

       On June 23, 2008, plaintiff was driving on Southern Avenue in the southeast quadrant of

the District of Columbia when defendant pulled him over for having an inoperative brake light.

Memorandum in Support of Defendant’s Motion to Dismiss (“Def.’s Mem.”) at 3 & Ex. 1

(police report); see Compl. at 5. During the course of the stop, defendant discovered that

       1
          The only other defendants are listed as “Unknown Officers of the US Park Police,”
Compl. Caption, which plaintiff has yet to identify. Hereafter, the Court will refer to defendant
in the singular.
plaintiff had an outstanding arrest warrant issued by the police department in Fairfax County,

Virginia, and a “counterfeit” temporary tag on the car that he was driving. Def.’s Ex. 1.

Defendant also discovered that plaintiff’s “drivers [sic] license status in DC is currently

suspended,” but he “identified [plaintiff] by his Maryland drivers [sic] license.” Id. Defendant

arrested plaintiff based on the arrest warrant and transported him to the Anacostia Park Police

station for processing and then to the Metropolitan Police Department (“MPD”). Id. Defendant

allegedly “yanked the tags from the vehicle” before placing plaintiff under arrest. Compl. at 5.

Plaintiff’s vehicle allegedly “per his request[,] was secured on scene.” Def.’s Ex. 1; but see Pl.’s

Opposition to Defendant (Officer Brown’s) Reply in Support of His Motion to Dismiss at 1-2

[Dkt. No. 18] (stating that “at no time did the plaintiff ask anyone to leave his car anywhere.”).

       Plaintiff subsequently appeared in the Superior Court of the District of Columbia where

“he was placed on a three day hold to await extradition by Virginia.” Compl. at 5. Three days

later, plaintiff contacted his family from the Fairfax County Jail. He told them “that he would

need them to go get his car[,] . . . told his sister where the car was left and asked her to take the

car home, because [he] had valuable property in the car.” Id. at 3. Plaintiff’s family members

were unable to locate the car. Id. at 4, 6. On July 13, 2008, Parker was released on bail and

began searching for his vehicle at the local towing companies, the location where he was

arrested, the Anacostia Park Police station and MPD’s Seventh District Headquarters. Id. at 6-7.

When he could not find his car, plaintiff called the Park Police station to speak with defendant,

who allegedly “became outraged[,] disrespected [him] and [] hung up the telephone on [him].”

Id. at 7. Parker then called the station again to speak with defendant’s supervisor. Sergeant “B.

Smith, Jr.” told plaintiff that he “‘would look into the claim,” id., and subsequently informed

plaintiff that his efforts to locate the vehicle were unsuccessful, id. at 8. Plaintiff lodged an


                                                   2
administrative complaint against defendant on July 14, 2008. Id.; Def.’s Ex. 3 (“Complainant/

Witness Statement”).2 Plaintiff alleges that he had “several job offers for home improvement”

that he could not accept “on the sole basis” that he had no tools because they were in his missing

car. Compl. at 8. Plaintiff initiated this action on March 26, 2009, claiming that as of March 17,

2009, he had received “neither his car nor his tools that were inside of the car.” Id.

                                          II. DISCUSSION

       1. Legal Standard

       The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to

dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than

labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” id., and

“naked assertion[s] devoid of further factual enhancement” will not suffice. Ashcroft v. Iqbal, ---

U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). Instead, a complaint

must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

       2
          In the administrative complaint, plaintiff also claimed that Brown and two officers had
assaulted him during the arrest and that he was filing the complaint because he “believe[d] the
officer may hurt someone in the [future]” if he remained unchecked. Def.’s Ex. 3. Plaintiff has
not made such an accusation or stated a claim of assault in the complaint before the Court.

                                                   3
        Although defendant has invoked Rule 12(b)(1), he has not articulated a basis for

dismissing the case for lack of subject matter jurisdiction. In evaluating a Rule 12(b)(6) motion

to dismiss for failure to state a claim, the court must construe the complaint in a light most

favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from

well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans

Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608

(D.C. Cir. 1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must

be granted the benefit of all inferences that can be derived from the facts alleged.”). The

plaintiff, however, must provide more than just “a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 129 S.Ct. at 1950. Where the well-pleaded facts set forth in the complaint

do not permit a court, drawing on its judicial experience and common sense, to infer more than

the “mere possibility of misconduct,” the complaint has not shown that the pleader is entitled to

relief. Id.

        2. Qualified Immunity

        Plaintiff faults defendant for allegedly removing the license plates from his car and

leaving the car unattended at the arrest site. See Compl. at 9-10. Individuals deprived of

constitutional rights by federal officials may sue for monetary damages under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); see Davis v.

Passman, 442 U.S. 228, 245 (1979) (Under Bivens, “it is damages or nothing.”) (citation and

internal quotation marks omitted). Defendant argues, among other reasons for dismissal, that he

is shielded by qualified immunity. Because a finding in defendant’s favor on this issue would

end the litigation as to him in his personal capacity, see Pearson v. Callahan, 129 S.Ct. 808, 816



                                                  4
(2009), the Court will address this argument first. See Saucier v. Katz, 533 U.S. 194, 201 (2001)

(instructing that qualified immunity claims be decided “at the earliest possible stage in

litigation”).

        “Qualified immunity . . . generally shields [governmental] officials from liability for their

discretionary functions ‘insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’ ” Butera v. District of

Columbia, 235 F.3d 637, 646-47 (D.C. Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). In analyzing an official’s qualified immunity claim, the Court generally considers

first “whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a

constitutional right” and second “whether the right at issue was ‘clearly established’ at the time

of defendant's alleged misconduct.” Pearson, 129 S.Ct. at 816 (citing Saucier, 533 U.S. at 201).

The sequence, while “often appropriate,” is not mandatory, however. Id. at 818.

        Plaintiff’s allegation that defendant left his car in an unsafe neighborhood does not rise to

the level of an unconstitutional deprivation of property,3 and negligence is not a cognizable claim

        3
          Such a claim would nevertheless fail because the due process clause is not violated if an
adequate post-deprivation remedy exists. Hudson v. Palmer, 468 U.S. 517, 533 (1984); accord
Crawford v. Parron, 709 F. Supp. 234, 235-6 (D.D.C. 1986). The Federal Tort Claims Act
(“FTCA”) provides the exclusive remedy for claims for monetary damages against the United
States “for injury or loss of property . . . caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office or employment” if a
private person would be liable for such acts in the jurisdiction of the alleged offense. 28 U.S.C.
§ 2672; see Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir. 1999) (“[T]he negligent or intentional
deprivation of property through the random and unauthorized acts of a state or federal employee
does not constitute a deprivation of due process if ‘a meaningful postdeprivation remedy for the
loss is available.’ ”) (quoting Hudson, 468 U.S. at 533). Before the Court could obtain
jurisdiction over an FTCA claim against the United States, however, plaintiff, who has not
asserted a claim under the FTCA, would first have to exhaust his administrative remedies under
the FTCA by "first present[ing] [his] claim to the appropriate Federal agency" and obtaining a
denial “by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a);
                                                                                         (continued...)

                                                   5
under Bivens. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (reaffirming that

“the Constitution does not guarantee due care on the part of state officials; liability for

negligently inflicted harm is categorically beneath the threshold of constitutional due process.”)

(citations omitted); Daniels v. Williams, 474 U.S. 327, 330 (1986) (agreeing that “negligent acts

by state officials, though causing loss of property, are not actionable under the Due Process

Clause.”) (citing Parratt v. Taylor, 451 U.S. 527, 548 (1981) (Powell, J., concurring)).

       In the absence of a constitutional violation, the Court concludes that defendant is entitled

to qualified immunity and, thus, grants his motion to dismiss under Rule 12(b)(6). A separate

Order accompanies this Memorandum Opinion.



                                               __________s/s__________________
                                               COLLEEN KOLLAR-KOTELLY
                                               United States District Judge
Dated: April 19, 2010




       3
         (...continued)
see Abdurrahman v. Engstrom, 168 Fed. Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (finding
that “the district court properly dismissed the case [based on unexhausted FTCA claim] for lack
of subject matter jurisdiction.”).

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