                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

ANDREW J. MARCUS,                         )
                                          )
              Plaintiff,                  )
                                          )
              v.                          )
                                          )             Civ. Action No. 08cv1900 (RJL)
THE DISTRICT OF COLUMBIA,                 )
etal                                      )
                                          )
              Defendant.                  )

                                      ~
                                MEMORANDUM OPINION
                           (August ~ 2009) [Dkt. 22, 23, and 26]

      The plaintiff, Andrew Marcus, brought this action against the District of Columbia

and various individuals alleging violations of his constitutional rights and the commission

of a number of common law torts. Three of the defendants, current or former MPD

officers Curtis Braxton, John Reasonover, and Diane Jackson, moved to dismiss each of

plaintiffs claims against them. For the reasons discussed below, these motions to dismiss

are GRANTED.

                                     BACKGROUND

      Marcus's complaint arises from events that took place on November 7,2007, at

Metropolitan Police Department ("MPD") headquarters. (CompI.,-r 16.) On that

afternoon, Marcus went to 301 C Street, N.W., in Washington, D.C., in the mistaken

belief that he was going to the Department of Motor Vehicles ("DMV"). (Jd.,-r 15-17.)



                                              -1-
When Marcus arrived, he approached the security table and told two privately employed

security guards, who are also defendants in this suit, that he was looking for the DMV.

(ld.   ~   16-17.) One of the two security guards ("the Guard") informed Marcus that he was

in fact at MPD headquarters, and not the DMV, at which point Marcus said "that moron

at the DMV sent me here." (ld.           ~   17.)

            Marcus and the Guard continued their exchange for a short while before Marcus

asked to speak with the Guard's supervisor. (ld.            ~   18-20.) According to Marcus, the

Guard became rather angry at this request, refused to divulge the name of his supervisor,

shoved Marcus's briefcase and coat back into Marcus's arms, and told Marcus to leave.

(ld.   ~   21-22.) When Marcus didn't comply, the Guard allegedly restrained him by force

after spinning him around and pushing him once again. (ld., 23-24.)

           At that point, defendants Reasonover and Jackson came along with one of the

other defendants in this case. I (ld., 24.) Seeing the confrontation in progress, they

placed Marcus in handcuffs. (ld.) Thereafter, Marcus was brought to a room inside MPD

headquarters, where he was detained for a short while in the custody of an MPD

detective-allegedly named Braxton-before being taken to George Washington University

Hospital to be treated for minor injuries. (ld., 27 -36.) From there, Marcus was taken to

a few lockup facilities around the District of Columbia, ultimately ending up at the

facility in the District of Columbia Superior Court. (ld., 37 -38.) In all, Marcus claims



           I   This defendant has not, as of yet, filed a motion to dismiss the plaintiff's against him.

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he was held for roughly 2S hours. (Id.   ~   40.)

       On November 3, 200S, plaintiff filed this suit. On December 5, 200S, defendants

Braxton and Reasonover moved to dismiss all of plaintiff's claims against them;

defendant Jackson did the same on December 19, 200S. For the following reasons, the

Court GRANTS defendants Braxton, Reasonover, and Jackson's motions.

                                         ANALYSIS

       Defendants Braxton, Reasonover, and Jackson have moved under Federal Rule of

Civil Procedure 12(b)(6) to dismiss plaintiff's claims against them. Dismissal is

warranted under Rule 12(b)(6) ifit appears that, under any reasonable reading of the

complaint, there are no set of facts which could be proved to justify the relief sought. See

Conley v. Gibson, 355 U.S. 41, 45-46 (1977). Recently, the Supreme Court has held that

Rule 12(b)(6) requires dismissal if the complaint does not set forth "plausible" claims.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The complaint must

contain "more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do." Id. at 555. "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a motion

to dismiss, a plaintiff must allege facts "above the speculative level," Twombly, 550 U.S.

at 555, such that the facts, if taken as true, are "suggestive of illegal conduct." Id. at 564

n.S. Marcus has failed to do so here. How so?



                                               -3-
        First, with respect to defendant Braxton, it has become clear in the course of the

parties' pleadings that he could not have been the officer identified in Marcus's complaint

as "Braxton." This is so because defendant Braxton retired from the MPD on June 9,

2007, and the incidents alleged in Marcus's complaint did not occur until November 7,

2007. (Braxton Mot. at 3.) Indeed, Marcus does not even dispute the mistaken identity of

defendant Braxton. 2 (PI. Opp'n to Braxton Mot. at 2.) Clearly, under prevailing pleading

standards, all claims against defendant Braxton must be dismissed because there is no

possibility that Braxton acted unlawfully towards Marcus. See Conley, 355 U.S. at 45-46.

        Next, as to defendants Reasonover and Jackson, Marcus alleges six common law

tort claims and one count of deprivation of his civil rights in violation of 42 U.S.C. §

1983. The Court, of course, has discretionary jurisdiction over Marcus's pendent

common law tort claims (Counts I through VI) because these claims arise from the same

set of alleged facts as the federal § 1983 claim (Count VII). 28 U.S.C. § 1367(a) (2008).

       As to Counts III, IV, and VI, these counts can be summarily dismissed because

they plainly lack any facts which might be "suggestive" of unlawful conduct by

Reasonover and Jackson. See Twombly, 550 U.S. at 564 n.8. According to Marcus,

Reasonover and Jackson did not arrive on the scene until his physical confrontation with

the Guard was already under way. (CompI.,-r 24.) Once on the scene, the only action

allegedly taken by Reasonover and Jackson was to place Marcus in handcuffs. (Id.)


       2 The Court declines to consider the requests for relief included in plaintiff s opposition
to Braxton's motion to dismiss because they are not raised in an appropriate fashion.

                                                -4-
Therefore, Count III, for malicious prosecution, fails because it does not allege any facts

to suggest Reasonover and Jackson acted with malice. 3 Similarly, Count IV, for abuse of

process, fails because it does not allege any facts to suggest Reasonover and Jackson

misused the judicial process. 4 Finally, Count VI, which alleges negligent hiring, training,

supervising, and/or retaining, fails because Marcus does not allege any facts suggesting

that Reasonover and Jackson were ever responsible for any of these functions. To say the

least, they cannot be held liable for breaching duties they did not have.

       Next, with respect to Counts I, II, V, and VII, these counts must also be dismissed

because, even assuming Marcus's allegations to be true, the Court finds that Reasonover

and Jackson still had probable cause to arrest the plaintiff. How so? Probable cause

exists when "facts and circumstances within the officer's knowledge . .. are sufficient to

warrant a prudent person in believing that the suspect has committed, is committing, or is

about to commit an offense," United States v. Wesley, 293 F.3d 541, 545 (D.C. Cir. 2002)

(citations omitted) (emphasis added). Here, Marcus alleges that Reasonover and Jackson

arrived on the scene only after he was embroiled in a physical altercation with the security

guard tasked with safeguarding the entrance to MPD headquarters. Whether Marcus, or


       3 See Tyler v. Central Charge Serv .. Inc., 444 A.2d 965, 968 (D.C. 1982) (noting that
malice is an essential element of malicious prosecution).

         4 See Scott v. District a/Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) ( "The essence of
the tort of abuse of process is the use of the legal system 'to accomplish some end which is
without the regular purview of the process, or which compels the party against whom it is used to
do some collateral thing which he could not legally and regularly be required to do. "') (quoting
Bown v. Hamilton, 601 A.2d 1074,1079 (D.C. 1992)).

                                               -5-
the Guard, initiated the altercation is irrelevant here because Reasonover and Jackson did

not show up until after the altercation was already under way. Upon seeing the

confrontation unfold in police headquarters, they had every reason to believe Marcus was,

at the very least, committing disorderly conduct. 5

        Given that probable cause existed for Marcus's arrest, and given that Marcus has

not alleged that Reasonover and Jackson used excessive force when they handcuffed him,

Count I, which alleges assault and battery, must be dismissed. See District o/Columbia v.

Chinn, 839 A.2d 701, 705 (D.C. 2003). Likewise, with respect to the false arrest claims

alleged in Counts II and VII,6 these too must fail in turn because such claims, whether

common law or constitutional, cannot proceed against police officers when the officers

acted with probable cause. See Pierson v. Ray, 386 U.S. 547, 555-557 (1967).

       Finally, Count V, which alleges intentional infliction of emotional distress, must

also fail because Marcus's claim that Reasonover and Jackson were acting in a manner

"extreme" or "outrageous" when they arrested him is neither factually, nor legally,

supported by the record. Indeed, it is contradicted by this Court's conclusion that these



       5 Disorderly conduct is defined by D.C. Code § 22-1321 (2001), which has been
interpreted to proscribe conduct that "occur[ s] under circumstances such that a breach of peace
may be occasioned thereby." Shepherd v. District o/Columbia, 929 A.2d 417, 418 (D.C. 2007)
(quoting Chemalali v. District a/Columbia, 655 A.2d 1226, 1228 (D.C. 1995)).

         6 Plaintiffs remaining claims under Count VII do not merit discussion because they are

not colorable. For the reasons discussed in this opinion, Marcus cannot make out common law
claims for assault and battery, malicious prosecution, abuse of process, or intentional infliction of
emotional distress; accordingly, he has no basis to frame the same allegations as constitutional
tort claims.

                                                -6-
two officers had probable cause to arrest Marcus.

                                    CONCLUSION

      Thus, for all of the reasons stated above, the Court GRANTS the motions to

dismiss of defendants Braxton [Dkt. # 23], Reasonover [Dkt. # 22], and Jackson [Dkt. #

26]. An appropriate order will issue with this Memorandum Opinion.
                                                           ,//t




                                                      ~
                                                      RICHARD J.
                                                      United States District Judge




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