                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
VERONICA Y. GUDGER,                           )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 14-576 (RMC)
                                              )
                                              )
DISTRICT OF COLUMBIA, et al,                  )
                                              )
               Defendants.                    )
                                              )

                                            OPINION

               Veronica Gudger sues the District of Columbia and three officers of the

Metropolitan Police Department (MPD), Michael Millsaps, Rudy Vick and Duncan Bedlion, for

allegedly violating her Fourth Amendment rights to be free from unreasonable searches and

seizures. Ms. Gudger alleges that the officers entered her apartment without consent, refused to

leave, physically assaulted her when she refused to consent to a search, and arrested her without

cause. For these alleged constitutional violations, Ms. Gudger brings this action under 42 U.S.C.

§ 1983. She also alleges several state law claims.

               Officers Vick, Bedlion and Millsaps are sued only in their individual capacities.

Officers Vick and Bedlion move to dismiss the claims against them under Federal Rule of Civil

Procedure 12(b)(6), on the grounds that the Complaint fails to state a claim upon which relief can

be granted. 1 See Mot. to Dismiss [Dkt. 5]. For the reasons that follow, the Court will grant the

motion to dismiss.


1
 Officers Vick and Bedlion each filed a sworn affidavit in connection with their Reply, see
Reply [Dkt. 10], and suggest that the Court could, in the alternative, resolve their motion as one

                                                  1
                                I.    BACKGROUND FACTS

               The following facts are taken from Ms. Gudger’s Complaint and are accepted as

true. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Early on August 21, 2013,

Ms. Gudger responded to loud banging at her front door and found MPD Officer Michael

Millsaps and “several unknown police officers at her door.” Compl. [Dkt. 1] ¶ 9. Officer

Millsaps entered Ms. Gudger’s apartment over her objection and demanded to search the

apartment for a third party who did not live there. Id. ¶¶ 10-12. Ms. Gudger denied permission

for a search and requested to see a warrant. Id. ¶ 13. Suddenly, Officer Millsaps “grab[bed] the

Plaintiff by her arm, struck the Plaintiff in the face, and threw her onto a nearby mattress” and

“then pounced on the Plaintiff . . . shoved his knee into the Plaintiff’s back” and handcuffed her.

Id. ¶¶ 14-15. After “Defendant Millsaps and other officers” searched the apartment, “Defendant

Millsaps caused the Plaintiff to be arrested and removed from her residence.” Id. ¶¶ 16-17.

While inside the police transport vehicle, “Defendant Bedlion asked the Plaintiff what had

transpired in her residence and the Plaintiff told Defendant Bedlion” what had happened. Id.

¶ 18.

               Ms. Gudger was transported to the Fifth District station house and formally

charged with assaulting Officer Millsaps. Id. ¶ 19. At the station house, Officer Vick “generated

an Arrest Report to support formal criminal charges against the Plaintiff.” Id. ¶ 20.




for summary judgment. See Fed. R. Civ. Pro. 12(d) (“If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.”). Since the
affidavits were filed with the Officers’ Reply, Ms. Gudger did not have an opportunity to
respond to the affidavits or file one of her own. The Court therefore declines to convert the
motion to one for summary judgment.


                                                 2
               Subsequently, Ms. Gudger was transported to the central cell block where she was

subjected to searches, including a rectal check, and was forced to urinate for a drug test. Id.

¶¶ 22, 24. Ms. Gudger remained in custody overnight, and was released the following day after

being told the case against her was dismissed. Id. ¶¶ 24-26. Ms. Gudger was never brought

before a judge. Id. ¶ 25.

               Ms. Gudger initiated this suit in Superior Court, but the case was removed to this

Court on April 7, 2014. The Complaint advances five counts. Count 1, against Officers

Millsaps, Vick and Bedlion, and Count 2, against Officers Vick and Bedlion, assert claims under

42 U.S.C. § 1983 for alleged Fourth Amendment violations. Count 3 false arrest, Count 4

battery, 2 and Count 5 false imprisonment assert claims against all defendants. Ms. Gudger seeks

compensatory damages, punitive damages, court costs, pre-judgment interest and attorney’s fees.

Officers Vick and Bedlion moved to dismiss all claims asserted against them in the Complaint on

May 15, 2014. The motion is ripe for decision.

                                 II.   LEGAL STANDARDS

               A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated

a claim. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(1). A complaint must be sufficient “to give a defendant fair notice of what

the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal

citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s

obligation to provide the grounds of his entitlement to relief “requires more than labels and
2
  In the Complaint, Count 4 was titled “False Arrest,” but Plaintiff explains in her Opposition
that the substance of Count 4 describes and refers to a claim for battery and that the incorrect
heading was the result of a typographical error. Pl. Opp’n [Dkt. 9] at 10.

                                                  3
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The

facts alleged “must be enough to raise a right to relief above the speculative level.” Id. Rule

8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3.

“[A] complaint needs some information about the circumstances giving rise to the claims.”

Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(emphasis in original).

               In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged

in the complaint, documents attached to the complaint as exhibits or incorporated by reference,

and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508

F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. When a plaintiff

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

liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

               A court must treat the complaint’s factual allegations as true, “even if doubtful in

fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth

in a complaint. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations. When

there are well-pleaded factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.



                                                  4
                                       III.   ANALYSIS

                 A. Federal Law Claims

                 The Complaint fails to set forth a valid claim under 42 U.S.C. § 1983 against

Officers Vick and Bedlion. To state a claim against the police officers under Section 1983, the

“plaintiff must allege the violation of a right secured by the Constitution and laws of the United

States, and must show that the alleged deprivation was committed by a person acting under color

of state law.” West. v. Atkins, 487 U.S. 42, 48 (1988).

                        1. Count 1–Civil Rights Action under 42 U.S.C. § 1983

                 Although Count 1 purports to bring claims against Officers Vick, Bedlion and

Millsaps, the factual allegations recount only actions taken by Officer Millsaps. Count 1 reads in

relevant part:

                 31. Defendant Millsaps’ entry into and search of the Plaintiff’s
                 home constituted a search under the Fourth Amendment to the
                 United States Constitution.

                 32. Defendant Millsaps’ action of causing the arrest and
                 incarceration of the Plaintiff constituted a seizure under the Fourth
                 Amendment to the United States Constitution.

                 33. The entry into and search of the Plaintiff’s residence were
                 unreasonable under the Fourth Amendment.

                 34. The arrest and incarceration of the Plaintiff were unreasonable
                 under the Fourth Amendment.

                 35. The amount of force used against the Plaintiff under the
                 circumstances was unreasonable and excessive under the Fourth
                 Amendment.

                 ...

                 37. The violation of the Plaintiff’s Fourth Amendment rights to be
                 free from unreasonable searches and seizure, and arrests without
                 probable cause, were committed by the Defendants with actual
                 malice against the Plaintiff.


                                                  5
Compl. ¶¶ 31-35, 37.

               Ms. Gudger alleges that Officer Millsaps entered and searched her apartment and

caused her to be arrested without probable cause and with the use of excessive force. See

Compl. ¶¶ 9-12, 14, 15, 17. She makes no such factual allegations against Officers Vick and

Bedlion. To the contrary, Ms. Gudger alleges that she first encountered Officers Vick and

Bedlion after her residence was searched and after she was arrested. See id. ¶¶ 18, 20. Ms.

Gudger’s sole factual allegation against Officer Bedlion is that he asked her what happened

inside her residence after she was placed in the police transport vehicle following her arrest. Id.

¶ 18. Her sole factual allegation against Officer Vick is that he generated an Arrest Report to

support criminal charges once she was brought to the police station. Id. ¶ 20. Absent any factual

allegations that Officers Vick and Bedlion committed the alleged constitutional violations, Count

1 must be dismissed for failure to state a claim.

               Ms. Gudger acknowledges these deficiencies in her Opposition, but her theory of

Count 1 is that Officers Vick and Bedlion were accomplices with Officer Millsaps when he

violated her Fourth Amendment rights. See Pl. Opp’n at 4. Ms. Gudger urges the Court to draw

the “reasonable inference” that the “unknown police officers” accompanying Officer Millsaps to

her front door were Officers Vick and Bedlion. See id. Ms. Gudger contends that this inference

can be drawn from her allegations that (1) “Defendant Millsaps and other officers then went

further into the Plaintiff’s residence and conducted a search of it,” Compl. ¶16; (2) Officer Vick

drafted the arrest report to support criminal charges against Ms. Gudger “with reason to know

that Defendant Millsaps did not have probable cause to seek the Plaintiff’s arrest,” Id. ¶ 28; and

(3) Officer Bedlion “approved Defendant Millsaps effort to cause the Plaintiff to be arrested and

charged without probable cause when Defendant Bedlion had reason to know that no probable


                                                    6
cause existed,” Id. ¶ 29. See Pl. Opp’n at 5-6. Ms. Gudger reasons that the Officers Vick and

Bedlion must have been present for the search and arrest and knew that Officer Millsaps did not

have probable cause to arrest her. Id. at 5.

                Ms. Gudger is mistaken as to what gives rise to a reasonable inference. A

plaintiff must plead “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added).

Put another way, the court begins its consideration of a motion to dismiss by assuming the

veracity of “well-pleaded factual allegations . . . and then determine[s] whether they plausibly

give rise to an entitlement to relief.” Id. at 679 (emphasis added). It does not work the other

way around. It is not reasonable for a court to infer a fact from a legal conclusion. See id.

(“While legal conclusions can provide the framework of a complaint, they must be supported by

factual allegations.”).

                Here, Ms. Gudger supplies a legal conclusion—that Officers Vick and Bedlion

knew no probable cause existed for her arrest—and asks the Court to derive a fact—that Officers

Vick and Bedlion were present for the search and arrest. This is not a reasonable inference: the

Court may not supply facts that Ms. Gudger herself failed to plead. Similarly, the Court cannot

infer that the “unknown officers” were in fact Officers Vick and Bedlion. See Compl. ¶ 9

(emphasis added). To do so would be to contradict the factual allegation pled in the Complaint,

which is taken to be true for purposes of evaluating the motion to dismiss. See Twombly, 550

U.S. at 555. Moreover, the reasonable inference to be drawn from the allegations concerning

Officer Bedlion’s query to Ms. Gudger as to “what had transpired in her residence” is that he was

not present inside Ms. Gudger’s residence and did not participate in the search or arrest. Compl.

¶ 18.



                                                 7
               On the face of the Complaint, it is not plausible that Officers Vick and Bedlion

are liable under Section 1983 for the alleged violation of Ms. Gudger’s Fourth Amendment

rights. She does not allege any facts “that the alleged deprivation[s] w[ere] committed by”

Officers Vick and Bedlion. See West, 487 U.S. at 48; Iqbal, 556 U.S. at 678. As to Officers

Vick and Bedlion, Count 1 fails to state a claim upon which relief may be granted.

                       2. Count 2–Civil Rights Action under 42 U.S.C. § 1983

               Count 2 reads in relevant part:

               38. Defendants Vick and Bedlion had reason to know that
               Defendant Millsaps did not have legal justification to enter and
               search the Plaintiff’s residence, or to arrest, transport, incarcerate
               or prosecute the Plaintiff; nevertheless Defendants Vick and
               Bedlion did not attempt to stop Defendant Millsaps from entering
               or searching the Plaintiff’s residence or from seizing, arresting,
               transporting, incarcerating, or prosecuting the Plaintiff with an
               assault.

               39. Defendants Vick and Bedlion had the opportunity to intervene
               to prevent the Plaintiff’s residence from being unlawfully entered
               and searched and to prevent the Plaintiff from being seized,
               arrested, transported, incarcerated and/or prosecuted.

               40. Defendants Vick and Bedlion had a legal duty to intervene . . . .

               41. Defendants Vick and Bedlion breached their duty to intervene
               and to protect the Plaintiff from having her residence unlawfully
               entered and searched.

               42. Defendants Vick and Bedlion breached their duty to intervene
               to prevent the Plaintiff from being unlawfully seized, arrested,
               transported, incarcerated, and prosecuted.

Compl. ¶¶ 38-42.

               An officer is held responsible for a constitutional violation under the bystander

theory of liability “if he: (1) knows that a fellow officer is violating an individual’s constitutional

right; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.”



                                                   8
Fernandors v. District of Columbia, 382 F. Supp. 2d 63, 72 (D.D.C. 2005) (quoting Randall v.

Prince George’s County, 302 F.3d 188, 204 (4th Cir. 2002)); Masel v. Barrett, 707 F. Supp. 4,

7-8 (D.D.C. 1989) (recognizing affirmative duty of a police officer to prevent the violation of

constitutional rights by another officer). 3

                Ms. Gudger does not dispute that personal knowledge of a fellow officer’s

violative conduct is a necessary element of bystander liability. Rather, Ms. Gudger asks this

Court to infer that Officers Vick and Bedlion were present with Officer Millsaps from the outset

and witnessed all of Officer Millsaps’ actions. See Pl. Opp’n at 6. Ms. Gudger contends that her

“explicit allegation that Vick and Bedlion had the opportunity to intervene inherently carries

with it the reasonable inference that they saw and heard exactly what [Ms. Gudger] complains

about . . . .” Id. at 7. However, it bears repeating that it is not reasonable to infer a fact from a

legal conclusion. Ms. Gudger has not alleged that either Officer Vick or Bedlion was present

when Officer Millsaps allegedly violated her Fourth Amendment rights. As such, she has failed

to allege facts that would permit the Court to draw the inference that these officers had firsthand

knowledge of the violations, much less that they had the opportunity to intervene and chose not

to act. Ms. Gudger’s recital of the elements of the cause of action will not suffice to satisfy the

plausibility standard announced in Iqbal. See Iqbal, 556 U.S. at 678. Count 2 fails to state a

claim upon which relief may be granted.

                B. Supplemental Jurisdiction over State Law Claims

                After dismissing federal law claims, a district court may, in its discretion, decline

supplemental jurisdiction under 28 U.S.C. § 1367(c) and dismiss the remaining state law claims.

Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005). In exercising such discretion,
3
  Randall follows the Second, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits. See Randall,
302 F.3d at 203-204. The D.C. Circuit has not addressed the question of “officer as bystander”
liability.

                                                   9
district courts should consider judicial economy, convenience, comity, and fairness. Id. at 424.

In the usual case, these factors point toward declining jurisdiction. Id. (citing Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). In Shekoyan, the D.C. Circuit held that even

where the litigation proceeded for four years before the federal claims were dismissed, the

district court did not abuse its discretion in declining supplemental jurisdiction. Id. at 424. See

Carnegie-Mellon University, 484 U.S. at 350 (doctrine of pendent jurisdiction is doctrine of

discretion; usually when all federal claims are dismissed before trial, a federal court should

dismiss state claims as well); United Mine Workers v. Gibbs, 383 U.S. 715 (1966) (same);

28 U.S.C. § 1367(c) (district court may decline to exercise supplemental jurisdiction).

               Because Ms. Gudger’s Section 1983 claims against Officers Vick and Bedlion

will be dismissed, the Court declines supplemental jurisdiction over the state law claims against

them. 4

               C. Leave to Amend the Complaint

               In Ms. Gudger’s Opposition, she “requests leave of court to amend her Complaint

in the event that the Court grants dismissal as to Counts 1 and 2.” Pl. Opp’n at 1. Federal Rule

of Civil Procedure 15(a) allows a plaintiff to amend her complaint “once as a matter of

course . . . 21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P. 15(a)(1).

Subsequently, a plaintiff can amend her complaint “only with the opposing party’s written

consent or the court’s leave,” although “[t]he court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). Courts in this district also require that “a motion for leave to

file an amended pleading shall be accompanied by an original of the proposed pleading as

amended.” L. Civ. R. 15.1; see also Rollins v. Wackenhut Servs., 703 F.3d 122, 130-131 (D.C.
4
  Officers Vick and Bedlion argue that they are entitled to qualified immunity on Ms. Gudger’s
federal law claims and have the benefit of common law privilege as to her state law claims. The
Court does not reach the issue.

                                                  10
Cir. 2012) (affirming district court’s denial of plaintiff’s request for leave to amend her

complaint for failure to comply with Local Rule 15.1); Belizan v. Hershon, 434 F.3d 579, 582

(D.C. Cir. 2006) (“[A] bare request in an opposition to a motion to dismiss—without any

indication of the particular grounds on which amendment is sought—does not constitute a

motion within the contemplation of Rule 15(a).”) (citation and internal quotation marks omitted).

               Ms. Gudger did not avail herself of the option to file an amended complaint

within 21 days of the Officers’ Motion to Dismiss and she did not attach a copy of her proposed

amended complaint—as required by Local Rule 15.1—which precludes an evaluation of the

merits of her request for leave to amend. The request to amend will be denied without prejudice.

                                    IV.    CONCLUSION

               For the reasons stated above, the Court will grant Officers Vick and Bedlion’s

Motion to Dismiss and they will be dismissed as parties to this case. Count 2 of the Complaint

will be dismissed in its entirety. The Court will deny Ms. Gudger’s request for leave to amend

her complaint, without prejudice. A memorializing Order accompanies this Opinion.



Date: November 10, 2014                                      /s/
                                              ROSEMARY M. COLLYER
                                              United States District Judge




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