                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

ROBERT HAMPTON III,                                )
                                                   )
              Plaintiff,                           )
                                                   )
              v.                                   )   Civil Case No. 10-1061 (RJL)
                                                   )
GOVERNMENT OF THE DISTRICT                         )
OF COLUMBIA, et al.,                               )
                                                   )
               Defendants.                         )

                                                ~
                               MEMORANDUM OPINION
                                 (February l!f., 2011) [#4]

       Plaintiff Robert Hampton II ("plaintiff') brings this action against the District of

Columbia ("the District" or "defendant"), as well as Metropolitan Police Officer Robert

Elliot ("Officer Elliot"), l for violations of his constitutional rights under 42 U.S.C. §§

1983, 1985 and the common law torts of false arrest and false imprisonment. Currently

before this Court is defendant's Motion to Dismiss. Upon consideration of the parties'

pleadings, relevant law, and the entire record herein, defendant's motion is GRANTED.

                                      BACKGROUND

       For the purpose of this motion, this Court accepts the allegations set forth in

plaintiffs Complaint as true. In the early hours of June 4, 2007, plaintiff and three

companions arrived at a gas station on M Street, S.E. in Washington, D.C. Compi.         ~   4.

While plaintiff was inside the station purchasing a bottle of water, Officer Elliot

1 As of the date of this opinion, Officer Elliot has not been served with the Complaint.
For the reasons stated in this Memorandum Opinion, however, any claims against Officer
Elliot are also dismissed.
                                               1
approached plaintiff s companions who were standing around the outside of plaintiff s

vehicle. Compl.,-r 5. As Officer Elliot approached, plaintiffs male companion began to

walk away and, despite Officer Elliot's request that he stop and return to the vehicle,

immediately left the scene. Compl.,-r 6. When plaintiff came out of the station, he found

Officer Elliot inside the vehicle searching the glove compartment. Compl.,-r 7. Plaintiff

alleges that Officer Elliot had neither probable cause nor permission to search the vehicle.

Compl. ,-r 8. Nevertheless, Officer Elliot found a pistol in the glove compartment and

arrested plaintiff for carrying a pistol without a license. Compl.,-r 9. Plaintiff was held

without bond and incarcerated from June 4,2007 until October 19,2007, at which time

the charges were dismissed. Compl.,-r 11.

       Plaintiff now claims restrictions on his freedom, cruel and unusual punishment,

violations of his due process rights and violations of equal protection, under the Fourth,

Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution. Compl.,-r 12.

Plaintiff also brings claims alleging the common law torts of false arrest and false

imprisonment. Compl.,-r,-r 14-22. Defendant, however, seeks to dismiss these claims

under Fed. R. Civ. P. 12(b)(6), arguing that plaintiff has failed to put forth facts that

support any cognizable claim upon which relief can be granted. I agree.

                                         ANALYSIS

       To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must

contain facts, which if accepted as true, "state a claim to relief that is plausible on its

face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a court must assume

all factual allegations to be true and draw all reasonable inferences in the plaintiffs favor,

                                               2
the Court "need not accept inferences drawn by plaintiffl] if such inferences are

unsupported by the facts set out in the complaint. Nor must the court accept legal

conclusions cast in the form of factual allegations." Kowal v. MCI Commc'ns Corp., 16

F.3d 1271,1276 (D.C. Cir. 1994). Indeed, "when allegations in a complaint, however,

true, could not raise a claim of entitlement to relief, this basic deficiency should be

exposed at the point of minimum expenditure of time and money by the parties and the

court." Twombly, 550 U.S. at 558 (internal quotes and citations omitted).

       As an initial matter, several claims made in the complaint are conceded. First, in

his opposition to defendant's motion to dismiss, plaintiff concedes that both common law

tort claims, false arrest and false imprisonment, are precluded by the one-year statute of

limitation. PI.'s Opp'n to Def.'s Mot. Dismiss ("PI. Opp'n") at 6. Second, it is the law in

our Circuit that "when a plaintiff files an opposition to a dispositive motion and addresses

only certain arguments raised by the defendant, the court may treat those arguments that

the plaintiff failed to address as conceded." Buggs v. Powell, 293 F. Supp. 2d 135, 141

(D.D.C. 2003) (citing Fed. Deposit Ins. Co. v. Bender, 127 F.3d 58, 67-68 (D.C. Cir.

1997)); see also L.Cv.R. 7(b). Because plaintiff made no attempt to address defendant's

arguments with respect to plaintiffs claims under 42 U.S.C. § 1985, the Eighth and

Fourteenth Amendments and the Equal Protection clause, this Court will treat those

claims as conceded. See L.Cv.R. 7(b).2 The remaining claims allege constitutional



2 The decision to treat a claim as conceded, however, is highly discretionary. Here, the
Court is persuaded to dismiss these claims as it is apparent that plaintiff also fails on the
merits. Plaintiff, who only alleges wrongdoing by a single person - Officer Elliot - has
not alleged a conspiracy as required under 42 U.S.C. § 1985. See generally 42 U.S.C. §
                                              3
violations ofplaintiffs Fourth and Fifth Amendment rights under 42 U.S.C. § 1983.

These claims, however, must also be dismissed. How so?

       Under 42 U.S.C. § 1983, a municipality, such as the District, is only liable for the

acts of its employees if a plaintiff can show that: (1) he was deprived of a constitutional

right; and (2) such deprivation was the result of a government policy or custom. Warren

v. District o/Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). This standard rejects a theory

of respondeat superior with respect to municipalities and precludes them from being sued

"under § 1983 for an injury inflicted solely by its employees or agents." Monnell v.

Dep 't o/Soc. Servs., 436 U.S. 658, 694 (1978); see also Oklahoma City v. Tuttle, 471

U.S. 808, 816 (1985). Simply put, the municipality, itself, must be at fault. Thus, a

complaint that fails to allege a municipal policy or custom that resulted in the

constitutional violation fails to allege a necessary element of a § 1983 claim. See Dant v.

District o/Columbia, 829 F.2d 69, 77 (D.C. Cir. 1987).

       In addition, a plaintiff alleging a violation of a constitutionally protected interest

under § 1983 must demonstrate that the violation was the proximate cause of the

plaintiffs injury. Carey v. Piphus, 435 U.S. 247, 258-59 (1978). Specifically, because



1985. In addition, neither the Eighth nor Fourteenth Amendments even apply to plaintiff.
See Estate o/Gaither v. District o/Columbia, 655 F. Supp. 2d 69, 85-86 (D.D.C. 2009)
(explaining that the Eighth Amendment only applies to convicted persons, not pretrial
detainees); Powers-Bunce v. District o/Columbia, 659 F. Supp. 2d 173, 179 (D.D.C.
2009) (explaining that suits against the District of Columbia must be brought under the
Fifth and not the Fourteenth Amendment). Finally, plaintiff did not make any allegations
regarding any disparate treatment that could amount to a challenge under the Equal
Protection Clause. See Vill. O/Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This
Court, therefore, does not hesitate in enforcing the local rules and treating each of these
claims as conceded.
                                              4
the interest protected by the Fourth Amendment is a person's privacy interest, a plaintiff

must show legal causation between the invasion of privacy and the actual injury suffered.

Townes v. New York, 176 F.3d 138, 148 (2d Cir. 1999). There is no legally cognizable

causal relationship, however, between an officer's search of a plaintiffs belongings and

the arrest and detainment that may result from the fruits of that search. Id. at 148-49

(noting that "the fruit of the poisonous tree doctrine is not available to assist a § 1983

claimant"); see also Elkins v. District o/Columbia, 610 F. Supp. 2d 53, 60 (D.D.C. 2009)

(finding that "a victim of an unreasonable search may recover damages directly related to

the invasion of privacy, but not for injuries resulting from the discovery of incriminating

evidence and consequent prosecution").

       Finally, the Fifth Amendment protects against the deprivation of life, liberty or

property without due process oflaw. U.S. CONST. amend. V. To this end, the Fifth

Amendment protects pretrial detainees from conditions of confinement that would

otherwise violate the Eighth Amendment. See Powers-Bunce v. District 0/ Columbia,

659 F. Supp. 2d 173, 179 (D.D.C. 2009). Thus, for a pretrial detainee to have a valid §

1983 claim, he must show a "wanton and unnecessary infliction of pain" or conditions

that are "grossly disproportionate" to the reason for detention. See Rhodes v. Chapman,

452 U.S. 337,347 (1981).

       Here, plaintiff fails to allege any facts regarding policies or customs, which would

sustain a claim against the District. See Monnell, 436 U.S. at 694. 3 Nor does plaintiff



3 Plaintiff s Opposition mentions the existence of an unnamed Washington Post article
from 2005 indicating that Officer Elliot was involved in an illegal search and seizure on
                                               5
assert any facts that would amount to a constitutional violation. Even assuming that

Officer Elliot had no probable cause to search plaintiffs glove compartment, the illegal

search alone would not cause his arrest and detention to be similarly illegal. See Townes,

176 F.3d at 148.

       Plaintiff also attempts to argue that the arrest itself was not based on probable

cause and, therefore, also violated his Fourth Amendment rights. Plaintiff develops this

argument in his Opposition and asks the Court to grant "leave to amend the Complaint to

allege [that plaintiffs] arrest was illegal and lacked probable cause." PI. Opp'n at 6.

Such an amendment, however, would be futile. Probable cause requires "facts and

circumstances within the officer's knowledge that 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. Dawkins, 17 F.3d 399, 403 (D.C. Cir. 1994).

Further, it is well established that probable cause may be based on constructive

possession. See United States v. Holly, 219 F. Supp. 2d 117, 123-24 (D.D.C. 2002).

Plaintiff admits that Officer Elliot discovered a pistol in the glove compartment of a

vehicle that was registered to the plaintiff. Compl.   ~   9. These facts are sufficient to show


at least one prior occasion. PI. Opp'n at 5. Plaintiff concludes that based on these two
incidents involving the same officer, "it appears that there is a failure to properly train
and instruct the police officers in the law of search and seizure." PI. Opp'n at 5. This
argument is to no avail. Indeed, the Supreme Court has stated that "it may happen that in
light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need." City a/Canton v. Harris, 489 U.S. 378, 390 (1989)
(footnote omitted). Nonetheless, plaintiff alleges no facts to support a finding of
deliberate indifference on the part of the District. This argument, therefore, must fail.
                                              6
probable cause. See Blackmon v. United States, 835 A.2d 1070, 1075 (D.C. 2003)

(finding sufficient probable cause to arrest the driver (and presumptive owner) of a

vehicle for constructive possession of cocaine found in the vehicle). This Court need not

accept plaintiffs conclusion that his arrest violated any constitutionally protected interest

when that conclusion is so flatly contradicted by the facts. The Court, therefore, denies

plaintiffs request for leave to amend. See James Madison Ltd. by Hecht v. Ludwig, 82

F.3d 1085, 1099 (D.C. Cir. 1996).

       Finally, plaintiff fails to raise any facts relating to the conditions of his

confinement that would have amount to a violation of his Fifth Amendment rights. See

Powers-Bunce, 659 F. Supp. 2d at 179. In addition, having found that plaintiffs arrest

was, indeed, lawful, this Court finds that plaintiff fails to raise any other cognizable claim

under the Fifth Amendment. 4

                                       CONCLUSION


       For all of the foregoing reasons, the Court GRANTS defendant's Motion to

Dismiss [#4]. An Order consistent with this decision accompanies this Memorandum

Opinion.                                                       ,
                                                    RICHARDJ.
                                                    United States District Judge



4 In his Opposition, plaintiff raises for the first time the fact that he was on probation at
the time of his arrest. PI. Opp'n at 4. As this Court finds that plaintiffs arrest was
lawful, it is difficult to see how this fact bares any relevance to any of his claims.
                                               7
