                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
DAVID OLABAYO OLANIYI,                    )
                                           )
                        Plaintiff,         )
                                           )
      v.                                   ) Civil Action No. 05-455 (RBW)
                                           ) Civil Action No. 06-2165 (RBW)
DISTRICT OF COLUMBIA, et. al.,             )
                                           )
                        Defendants.        )
__________________________________________)

                                            Memorandum Opinion

         The plaintiff, David Olabayo Olaniyi, alleges that he was subjected to constitutional and

common-law violations arising from his arrest in the United States Capitol Building in March of

2003, and from a separate incident involving a vehicle stop in the District of Columbia in

January of 2004. See generally Second Amended Complaint (“Am. Compl.”); Complaint

(“United States Compl.”).1 There are several motions currently pending before the Court,

including a motion to dismiss filed by the United States, a motion to dismiss or in the alternative

for summary judgment filed by the District of Columbia, and a motion to dismiss or in the

alternative for summary judgment filed by the thirty-seven individual federal defendants (the

“federal defendants”). The plaintiff has filed oppositions to all of these motions. Upon careful

consideration of the parties’ written submissions,2 the applicable legal authority, and the record


1
 The plaintiff filed two complaints in this case that have been consolidated by the Court: one against the District of
Columbia and numerous individual employees of both the District of Columbia and federal governments, filed on
March 3, 2005, and ultimately amended on October 31, 2006, which will be referred to in this opinion as the
plaintiff’s Second Amended Complaint; and the other against the United States government, which was filed on
December 20, 2006, and will be referred to in this opinion as the United States Complaint.
2
 The Court considered the following papers in resolving these motions: (1) Defendant United States’ Renewed
Motion to Dismiss (“United States Mot.”); (2) the United States’ Reply to Plaintiff’s Opposition to Defendant
United States’ Renewed Motion to Dismiss (“United States Reply”); (3) the District of Columbia’s Motion to
                                                                                         (continued . . .)
in this case, for the reasons set forth below the Court will grant in part and deny in part the

United States’ motion to dismiss, deny the District of Columbia’s motion for summary judgment

without prejudice pending further discovery, and grant summary judgment to the individual

federal defendants.

                                            I. INTRODUCTION3

A.       Factual Background

         The facts that give rise to this case were set forth fully in the Court’s prior opinion in this

case. See Olaniyi v. District of Columbia, 416 F. Supp. 2d 43, 46-48 (D.D.C. 2006). The Court

largely repeats those facts here, updating the internal citations to incorporate the Second

Amended Complaint (“Am. Compl.”), and providing more detail with respect to the search of the

plaintiff’s van.

         The plaintiff, a native of Nigeria, describes himself as “an artist, philosopher, scholar,

performer, and director.” Am. Compl. ¶ 3. According to the plaintiff, on March 6, 2003, he and

his current wife, Reena Patel Olaniyi, then residents of Michigan, visited the United States

(. . . continued)
Dismiss or Alternatively, For Summary Judgment (“District of Columbia’s Mot.”); (4) The District of Columbia’s
Reply to Plaintiff David Olaniyi’s Opposition to Defendant District of Columbia’s Motion to Dismiss or
Alternativ[ely], for Summary Judgment (“District of Columbia’s Reply”); (5) the Federal Defendants’ Motion to
Dismiss Plaintiff’s Second Amended Complaint, or Alternatively, for Summary Judgment; Memorandum of Points
and Authorities in Support of the Federal Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint, or
Alternatively, for Summary Judgment (“Fed. Defs.’ Mem.”); (6) the Federal Defendants’ Reply to Plaintiff’s
Memorandum in Opposition to the Federal Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint,
or in the Alternative, for Summary Judgment, and Memorandum in Support Thereof (“Fed. Defs.’
Reply”); (7) Plaintiff David Olabayo Olaniyi’s Opposition to Defendant United States’ Renewed Motion to Dismiss
and Memorandum of Points and Authorities in Support Thereof (“Pl.’s Opp’n to United States’ Mot.”); (8) Plaintiff
David Olabayo Olaniyi’s Opposition to Defendant District of Columbia’s Motion to Dismiss or Alternatively, for
Summary Judgment (“Pl.’s Opp’n to District of Columbia’s Mot.”); and (9) Olaniyi’s Memorandum in Opposition
to Federal Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint, or in the Alternative, for
Summary Judgment (“Pl.’s Opp’n to Fed. Defs.’ Mot.”).
3
 In setting forth the factual background, the Court relies on both facts contained in the amended complaint, as well
as facts derived from sources outside of the complaint. Consistent with the standards of review for the various
motions that are now before the Court, see infra pp. 13-14, the Court, in deciding whether to grant the United States’
motion under Federal Rule of Civil Procedure 12(b)(6), will not consider any facts that are asserted outside of the
complaint, unless those facts are of the kind that the Court may take judicial notice.



                                                          2
Capitol Building to tour and conduct research for the plaintiff’s stage play. Id. ¶¶ 3, 65-66. The

plaintiff contends that the play “would illustrate to audiences across the United States the way in

which objects in one’s physical space tend to shade one’s views of different experiences.” Id. ¶

3.

         In preparation for his visit, the plaintiff constructed and wore a costume consisting of

“various materials from the [District of Columbia] environment, including newspapers, shampoo

bottles, [and] empty honey jars . . . wrapped in duct tape which was formed into a harness shape

over [the plaintiff’s] chest.” Id. ¶ 66.4 The plaintiff also carried “a small, hand-carved mask

sculpture,” which he had “for entertainment purposes.” Id. ¶¶ 67, 70. He acknowledges that the

events took place “[i]n the wake of the September 11, 2001 terrorist attacks, an atmosphere of

heightened anxiety and concerns over safety and security…in the United States,” which he

contends “created a society filled with overzealousness and suspicion,” id. ¶ 65, and states that

he wore the costume “in an effort to study people’s interactions with him [and] spread a message

of tolerance and understanding during times of war,” id. ¶ 66.

         Clad in his costume, the plaintiff passed through several security checkpoints, including

checkpoints equipped with a magnetometer, x-ray machine, and explosive detectors, before

gaining entry into the Capitol Building. See id. ¶ 68. When asked about his costume, the

plaintiff “explained to the guards that he was an artist doing research for an upcoming

performance.” Id. Also, once inside the Capitol Building, the plaintiff “performed for tourists

by dancing and singing,” and he took photos with them. Id. ¶ 69. The plaintiff also described

his stage play “David/Dafidi,” and his artistic philosophy as “Life is a Performance.” Id.


4
  The federal defendants offer a very different interpretation of the plaintiff’s costume, saying that it resembled a
belt commonly worn by suicide bombers. Fed. Defs.’ Mem. at 14.




                                                           3
         The plaintiff alleges that while he was in the Crypt area of the Capitol Building, he was

approached by Officer Preston Nutwell of the Capitol Police. Id. ¶ 70. Officer Nutwell asked

what the plaintiff was holding, and the plaintiff identified the object as a hand-carved mask

sculpture. Id. After instructing the plaintiff to drop the object, Officer Nutwell allegedly

“grabbed the piece and shattered it on the ground.” Id. The plaintiff was then handcuffed. Id. ¶

71.5

         After the plaintiff was handcuffed, “[t]hirty to forty more” officers, including members of

the Capitol Police Hazardous Device Unit, the Federal Bureau of Investigation’s (“FBI”) Joint

Terrorism Task Force, and Detective Joseph DePalma, arrived in the Crypt area of the Capitol

Building. Id. When asked if there were wires or explosives in his costume, the plaintiff

responded in the negative, stating that he was wearing the costume for artistic purposes. Id. The

plaintiff’s costume was then cut from his body and x-rayed. Id. It was determined that the

plaintiff was unarmed, and preliminary testing conducted on the costume was negative for

explosives, chemical agents, and radiation.6 Id.; see Fed. Defs.’ Mem., Exhibit (“Ex.”) 2

(Declaration (“Decl.”) of Robert Meikrantz) at 11-12. The plaintiff remained in custody in the

Capitol Building for almost ninety minutes before being arrested. Am. Compl. ¶ 72. He

contends that he was then taken to the Capitol Hill Police Processing Center and interrogated

without being provided access to an attorney. Id.

         In a post-arrest search of the plaintiff’s person, the officers discovered a set of car keys,

which the plaintiff explained were for the use of his vehicle, a black 2002 GMC Savanna van.


5
  According to the plaintiff, Officer Nutwell later represented that he heard the plaintiff say “were [sic] all children
of ‘Allah,’” which the plaintiff disputes because he “was raised Catholic, is not Islamic, and never said the word
‘Allah.’” Am. Compl. ¶ 70
6
 The event did not cause the House of Representatives to be evacuated, and the Sentate was not in session when the
event occurred. Am. Compl. ¶ 71.



                                                            4
Id. ¶ 73. The police subsequently located the van in the 300 block of 3rd Street, NE,

approximately four blocks from the Capitol Building. Id.; Olaniyi, 416 F. Supp. 2d at 47.

According to the federal defendants, because the plaintiff’s costume resembled a vest associated

with suicide bombers, there was concern that there may be explosives inside the van or that the

plaintiff may have been engaging in a “Dry Run” to test security or observe response procedures

and capabilities at the Capitol Building. See Fed. Defs.’ Mem., Ex. 2 (Decl. of Daniel Malloy) at

9-10; id., Ex. 2 (Decl. of Gillman G. Udell) (“Udell Decl.”) at 14-15. Neighbors and restaurant

employees had reportedly told the officers that the van had expired out-of-state license plates,

had been parked in the same location for several days, and that several individuals appeared to be

living inside the vehicle. Id., Ex. 2 (Decl. of John King) (“King Decl.”) at 6-8; id., Ex. 2 (Decl.

of Daniel Malloy) at 9-10.7

         A canine search of the van’s exterior did not reveal any traces of explosives, Am. Compl.

¶ 73, but while conducting the search the Capitol Police canine officers observed large containers

in the rear of the van covered by blankets and clothing, Fed. Defs.’ Mem., Ex. 2 (King Decl.) at

7; id., Ex. 2 (Decl. of John Dineen) at 4-5.8 Around this same time, Gillman Udell, a

Commander of the Hazardous Incident Response Division of the Capitol Police, id., Ex. 2 (Udell

Decl.) at 14, ordered that the entire block where the van was parked be cleared of vehicular and


7
  The report about the van being parked in the same location for several days is incorrect, as the plaintiff had
actually received a parking ticket earlier on the day of his arrest for parking in a restricted area in Arlington,
Virginia. Pl.’s Opp’n to Fed. Defs.’ Mem. at ¶ 5 & Ex. B (Decl. of David Olabayo Olaniyi) (“Olaniyi Decl.”).
8
  The plaintiff argues that the officers could not have seen the inside of the van because the “van came equipped
with opaque window shades on the rear and side windows,” Pl.’s Opp’n to Fed. Defs.’ Mot., Olaniyi Decl. ¶ 3,
which the plaintiff represents were pulled down when he parked the vehicle, id. ¶ 6. The plaintiff has submitted
pictures of the van, see id., Ex. C, apparently taken while the van was in FBI custody, which the plaintiff claims
show the shades pulled down, id., Olaniyi Decl. ¶ 6. Even with the shades pulled down, however, the plaintiff
acknowledges that observation into the interior of the van could be made through the windshield, as well as through
the windows adjacent to the driver and front passenger seats. Pl.’s Opp’n to Fed. Defs.’ Mot. at 23. Thus, it was
possible by the plaintiff’s own admission for the officers to look into the van through those several windows.




                                                           5
pedestrian traffic, and neighbors were told to go to the backside of their homes and seek cover

until someone knocked on their doors. Id., Ex. 2 (King. Decl.) at 7; id., Ex. 2 (Decl. of Donald

Bracci) (“Bracci Decl.”) at 1-3. Captain Udell also gave clearance to bomb technicians John

King and Donald Bracci to perform a diagnostic inspection of the van’s exterior and interior to

determine if the vehicle contained explosives or other hazardous materials. See id., Ex. 2 (Bracci

Decl.) at 2; id., Ex. 2 (King Decl.) at 7.

        During their inspection of the van’s exterior, agents King and Bracci confirmed that

several large containers were present in the back of the van and also noticed three large

unmarked glass jars containing an unknown liquid located between the van’s front seats. Id., Ex.

2 (Bracci Decl.) at 2; id., Ex. 2 (King Decl.) at 7. The bottom portions of the glass jars, however,

could not be seen by agents King and Bracci from their vantage points. Id., Ex. 2 (King. Decl.)

at 7. After donning protective equipment to safeguard themselves from exposure to any

hazardous chemicals, agents King and Bracci entered the van. Id., Ex. 2 (Bracci Decl.) at 2. The

containers were examined as if they contained potential explosive, chemical, or incendiary

hazards, and agents King and Bracci handled the items in the van with proper care. Id., Ex. 2

(Bracci Decl.) at 3; id., Ex. 2 (King Decl.) at 8. They determined that the containers had no

wires attached to them, and that the liquid inside the containers was urine. Fed. Defs.’ Mem.,

Ex. 4 (Decl. of Kevin D. Finnerty) (“Finnerty Decl.”) at 1-4 ¶ 5. The containers were then

packed in HAZMAT-approved containers and left inside the van. See id., Ex. 2 (Bracci Decl.) at

3.

        After the search of the van, FBI Special Agents Doug Edmonson and Kevin Finnerty

discussed the incident with members of the Capitol Police. See Fed. Defs.’ Mem., Ex. 3 (Decl.

of Douglas R. Edmonson) (“Edmonson Decl.”) at 7-9 ¶ 3; id., Ex. 4 (Finnerty Decl.) ¶ 6. These




                                                 6
officials were concerned that the plaintiff “might have been intentionally probing security at the

Capitol [Building] in advance of an actual attack, or may have been [an] unwitting ‘pats[y]’

being used by terrorists to probe security at the Capitol,” and that the van would contain

evidence in this regard. Id., Ex. 4 (Finnerty Decl.) ¶ 6. Both agents also noted that because “Mr.

Olaniyi and Ms. Patel had been arrested, [they] did not want to leave [the] van on the street and

run the risk that it would be vandalized, stolen, [or] towed because of a parking violation, or

perhaps driven away by an unknown third party involved in the incident.” Id.; see also id., Ex. 3

(Edmonson Decl.) ¶ 3. In consultation with a supervisor at the FBI’s Washington Field Office,

agents Finnerty and Edmonson ordered that the van be impounded and towed to an FBI storage

facility. Id., Ex. 4 (Finnerty Decl.) ¶ 6; id., Ex. 3 (Edmonson Decl.) ¶ 3. Agent Finnerty then

requested that an inventory search of the van be conducted. Id., Ex. 4 (Finnerty Decl.) ¶ 6.

Analysis of the liquids retrieved from the van during the inventory search determined that they

were non-hazardous. See Fed. Defs.’ Mem., Ex. 3 (Decl. of Melissa R. Godbold) at 20-23 ¶ 2.

The plaintiff alleges that the conduct of the Capitol Police and FBI resulted in the destruction of

“numerous pieces of original artwork” that were inside the van. Am. Compl. ¶ 73.

       Following his arrest, the plaintiff was detained overnight in a holding cell and, after a

clinician assessment indicated that he had “delusions of grandeur,” id. ¶¶ 74-75, was later

transferred to the Mental Health Unit of the District of Columbia Jail (the “Mental Health Unit”),

where he remained for approximately three nights, id. ¶¶ 74-77. During his stay in the Mental

Health Unit, clinicians informed the plaintiff that, according to test results, he was diabetic and

that they would administer medication to treat the condition. Id. The plaintiff denied having

diabetes and refused the medication, but claims that “he was told ‘you can either cooperate or be

physically restrained while we inject you[],’” at which point he purports to have cooperated with




                                                  7
the clinicians while under duress. Id. The plaintiff alleges that he was then “forcibly

administered a medication which caused him to lose consciousness until the following morning.”

Id. He believes the “medication was an antipsychotic drug because it caused [him] to lose

consciousness for several hours and . . . was administered through a shot into [his] upper arm

rather than a typical finger prick for diabetes testing.” Id. Records the plaintiff later obtained

from the Mental Health Unit “indicate that [he] was ‘cooperative’ and ‘consistent,’ and that he

had no history of diabetes.” Id.

          On March 10, 2003, after his release from the Mental Health Unit, the plaintiff and Ms.

Patel were charged in this Court with (1) demonstrating in the Capitol Building in violation of 40

U.S.C. § 5104(e)(2)(G) (2006);9 (2) making a false bomb threat in violation of 18 U.S.C. §

844(e) (2006); (3) aiding and abetting in violation of 18 U.S.C. § 2 (2006); and (4) assault or

threatened assault in violation of D.C. Code § 22-404 (2001). Olaniyi, 416 F. Supp. 2d at 48 &

nn.7-10. They were indicted on April 1, 2003, and pleaded not guilty at their arraignment on

May 29, 2003. Id. at 48. On August 13, 2003, the Court dismissed all charges upon motion of

the government. Id.

          In January of 2004, the plaintiff, along with his children and Patel, returned to the District

of Columbia to retrieve several pieces of artwork that were confiscated by the Capitol Police

after the events of the previous March. United States Compl. ¶ 34. While driving near the

Capitol Building in the same van discussed earlier in describing the events of the previous

March, the plaintiff was pulled over by the Capitol Police. Id. According to the plaintiff,

Detective Joseph DePalma, one of the officers present during the plaintiff’s arrest in March of

2003, although not involved in the initial stop, subsequently arrived on the scene and appeared to


9
    This provision was previously codified at 40 U.S.C. § 193f(b)(7). See Olaniyi, 416 F. Supp. 2d at 48 n.7.



                                                           8
be supervising the activities. Id. ¶ 35. Detective DePalma informed the plaintiff that his vehicle

was pulled over “because there was snow on the van and because the Michigan tags made [him]

‘suspicious.’” Id. The plaintiff claims that Detective DePalma made “several inappropriate

comments” and “other intimidating remarks” to the plaintiff. Id. ¶ 36. These remarks included

questions about “why [the plaintiff] and [his family] were back in [Washington] D.C.; why they

had the children with them; whether [the plaintiff] had custody of the children; whether he had

the authority to remove them from Michigan; and whether he had papers on his person

authorizing their transportation.” Id. The plaintiff also states that Detective DePalma “had dogs

search the van while the children were in it.” Id. ¶ 37.

        After the January 2004 vehicle stop, the plaintiff alleges a pattern of ongoing harassment

and intimidation by Detective DePalma and other members of the federal government,

culminating in a visit to the plaintiff’s home in Iowa by Secret Service agents. See id. ¶¶ 38-41.

According to the plaintiff, the Secret Service agents’ visit was prompted by an allegation made

by the plaintiff’s ex-wife, who had gone to “authorities in Michigan and said [the plaintiff] was

going to kill the President.” Id. ¶ 40. During the meeting with the Secret Service agents, the

plaintiff was questioned about “his life, his parents, his arrest, his travel destinations, and his

immigration status,” and his son was asked whether the plaintiff ever said he was going to kill

the President. Id. The plaintiff also claims that Secret Service Agent Hull threatened him by

asking what would happen if the plaintiff’s immigration papers were confiscated. Id.

B.      Procedural History

        On March 3, 2005, the plaintiff initiated this action against the District of Columbia,

Capitol Police officers Joseph DePalma and Preston Nutwell, a John Doe Capitol Police

defendant, and a John Doe FBI defendant. See Olaniyi, 416 F. Supp. 2d at 48-49 & n.6. The




                                                   9
plaintiff alleged violations of the First, Fourth, and Fifth Amendments of the Constitution

stemming from his arrest and detention in the Capitol Building and the warrantless search of his

van, and constitutional and common law tort violations by the District of Columbia for conduct

that allegedly transpired during the plaintiff’s confinement in the Mental Health Unit. Id. at 48-

49.10

        On February 17, 2006, the Court issued a Memorandum Opinion dismissing on qualified

immunity grounds the plaintiff’s First Amendment claims, id. at 55, the Fourth Amendment

claims pertaining to the plaintiff’s arrest and initial detention in the Capitol Building, id. at 58-

59, and his Fifth Amendment claims, id. at 63. However, the Court denied the federal

defendants’ motion to dismiss with respect to the Fourth Amendment claims arising from the

search of the plaintiff’s van. Id. at 59-60. As the Court explained, “the federal defendants

lacked probable cause to believe that the plaintiff’s van contained any explosives once no

explosives were found on the plaintiff’s person, and thus the absence of exigent circumstances is

fatal to any qualified immunity claim as to the warrantless search of the vehicle.” Id. at 60. The

Court’s prior opinion did not address the claims against the District of Columbia because it had

not filed any motion to dismiss, id. at 48 n.6, or the impact of the January 2004 vehicle stop

because the plaintiff had not asserted yet any specific claims arising from that incident, id. at 48

n.11.

        On October 31, 2006, the plaintiff filed his Second Amended Complaint. With the

exception of naming additional federal defendants, see Am. Compl. at 1-11,11 this complaint was


10
   The plaintiff sued the individual federal defendants pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the District of Columbia pursuant to 42 U.S.C. § 1983
(2006).
11
  The Second Amended Complaint names the following twenty three individuals from the United States Capitol
Police: (1) Jordan Blieden; (2) Charlie V. Boswell; (3) Donald Bracci; (4) Tyrone D. Brooks; (5) Rose B. Cabezas;
                                                                                        (continued . . .)


                                                       10
based largely on the same facts as the prior complaint, and alleged the same legal violations as

set out in the first complaint, see Docket Entry 67, Notice of Filing ¶¶ 4-5.12

         On December 20, 2006, the plaintiff filed a separate complaint against the United States

pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2006) (the “FTCA”),

alleging the following six common law violations committed by the Capitol Police and Secret

Service: (1) false arrest and imprisonment associated with the plaintiff’s arrest in the Capitol

Building in March 2003; (2) false arrest and imprisonment associated with the vehicle stop in

January 2004; (3) malicious prosecution; (4) intentional infliction of emotional distress; (5)

conversion of property; and (6) loss of future earnings, humiliation, and damage to reputation.

United States Compl. ¶¶ 43-72; see also Pl.’s Opp’n to United States’ Mot. at 10 n.4.

         On March 20, 2007, the plaintiff voluntarily dismissed his claims against all members of

the District of Columbia Department of Corrections except defendants Darius Mills and

Gwendolyn Gibson. See Docket Entry 94, Notice of Voluntary Dismissal of Certain Defendants


(. . . continued)
(6) Mark Crawford; (7) Joseph DePalma; (8) John T. Dineen; (9) Gregory W. Guthrie; (10) Noe J. Gutterez; (11)
Elaine A. Hinkle; (12) Shawn K. Huycke; (13) John E. King; (14) Danny Malloy; (15) Danny L. McElroy; (16)
Robert B. Meikrantz; (17) Preston Nutwell; (18) Officer Salb; (19) Ryan S. Schaur; (20) John Shark; (21) Kathleen
Talbot; (22) Mary Turner; and (23) Gillman Udell. Am. Compl. at 4-7. The following fourteen members of the FBI
are also named: (1) Giulio J. Arseni; (2) Jennifer Cejpeck; (3) Sandra I. Chinchilla; (4) Mary B. Collins-Morton; (5)
Doug Edmonson; (6) Kevin D. Finnerty; (7) John Gardner Jr.; (8) Paul Garten; (9) Chris Ginsburg; (10) Melissa R.
Godbold; (11) Ronald E. Menold II; (12) Michelle Rankin; (13) Kara D. Sidener; and (14) Gerhard S. Vienna. Id. at
8-11. The Second Amended Complaint also named thirteen individuals from the District of Columbia Department
of Corrections, id. at 1-3, however, the plaintiff later voluntarily dismissed his claims against eleven of these
defendants, see Docket Entry 94, leaving only claims being asserted against Darius Mills and Gwendolyn Gibson.
12
   In the Notice of Filing submitted with the Second Amended Complaint, the plaintiff explains that “[b]eyond the
naming of ‘John Doe’ Defendants, Plaintiff’s Second Amended Complaint amends Plaintiff’s First Amended
Complaint in such a manner as to clearly identify how Plaintiff’s claims relate to the newly-named Defendants.
Plaintiff’s Second Amended Complaint in no way expands or alters its claims against previously named
Defendants.” Docket Entry 67, Notice of Filing ¶ 5. The plaintiff also indicated that he had “re-allege[d] against the
newly-named Defendants all of the claims originally filed against the Federal Defendants, as appropriate, in order to
preserve for the record Plaintiff’s right to appeal the [Court’s] February 17, 2006 Memorandum Opinion.” Id. ¶ 2.
The Court subsequently dismissed all of the claims that the plaintiff asserted against the newly named federal
defendants, with the exception of the Fourth Amendment claims arising out of the search of the plaintiff’s van. See
Order at 3-4, Olaniyi v. Dist. of Columbia, Civil Action No. 05-455 (RBW) (D.D.C. Nov. 10, 2006), ECF No. 69.




                                                         11
¶ 4. Defendant Mills, proceeding pro se, then filed an “Answer to and Request for Dismissal

Based on Lack of Merit,” Docket Entry 139, which the Court ultimately construed as an answer.

Docket Entry 140.13 Defendant Gibson has not filed any response in this case, and a default was

entered against her on May 31, 2007. Docket Entry 113.

        As noted at the outset of this opinion, the United States, the District of Columbia, and the

individual federal defendants have filed either motions to dismiss or, alternatively, motions for

summary judgment. The defendants assert a number of arguments in support of their respective

motions, and the Court will examine each defendant’s arguments in turn.

                                     II. STANDARDS OF REVIEW

A.      Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)

        A motion for dismissal under Rule 12(b)(1) “presents a threshold challenge to the court’s

jurisdiction . . . .” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); see also Grand Lodge

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that a Rule

12(b)(1) motion imposes an affirmative obligation on the court to ensure it is acting within its

jurisdictional authority). Specifically, the Court may dismiss a claim if the Court “lack[s] . . .

subject matter jurisdiction” to entertain it. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), “it is

presumed that a cause lies outside [the federal courts’] limited jurisdiction,” Kokkonen v.

Guardian Life Ins. Co., 511 U.S 375, 377 (1994), and the plaintiff bears the burden of

establishing the Court’s jurisdiction by a preponderance of the evidence, see, e.g., Moore v.

Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008). In deciding a motion to dismiss based upon lack of

subject matter jurisdiction, a Court is not limited to the allegations set forth in the complaint, but

“may consider materials outside the pleadings.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d

13
  Because defendant Mills’ filing was construed as an answer and not a motion to dismiss, the Court does not
address the plaintiff’s claims against defendant Mills.



                                                       12
1249, 1253 (D.C. Cir. 2005). However, when reviewing a motion to dismiss pursuant to Rule

12(b)(1), the Court is required to accept as true all factual allegations contained in the complaint.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993).

B.        Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

          On the other hand, a motion to dismiss under Rule 12(b)(6) tests whether a complaint has

properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D.

191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide

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

Civ. P. 8(a)(2), which is sufficient to “give the defendant fair notice of what the claim is and the

grounds on which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although

Federal Rule of Civil Procedure 8(a) does not require “detailed factual allegations,” a plaintiff is

required to provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,”

Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555

(internal quotation omitted)). In other words, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, __U.S. at

__, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when

the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). A

complaint alleging facts which are “merely consistent with a defendant’s liability . . . stops short

of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly

550 U.S. at 557 (internal quotation marks omitted))..




                                                  13
        In evaluating a Rule 12(b)(6) motion under this framework, “[t]he 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,” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979) (internal quotation marks and citations omitted), and the Court “may consider only the

facts alleged in the complaint, any documents either attached to or incorporated in the complaint,

and matters of which [the Court] may take judicial notice,” E.E.O.C. v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted). Although the Court must

accept the plaintiffs’ factual allegations as true, conclusory allegations are not entitled to an

assumption of truth, and even those allegations pleaded with factual support need only be

accepted to the extent that “they plausibly give rise to an entitlement to relief.” Iqbal, __ U.S. at

__, 129 S. Ct. at 1950. Furthermore, where “more likely explanations” than those alleged by the

plaintiff exist, the Court should be reluctant to find that the plaintiff’s allegations have

sufficiently nudged his claims into the realm of plausibility. See id. at 1951-52. If “the [C]ourt

finds that the plaintiffs have failed to allege all the material elements of their cause of action,”

then the Court may dismiss the complaint without prejudice, Taylor v. FDIC, 132 F.3d 753, 761

(D.C. Cir. 1997), or with prejudice, provided that the Court “determines that the allegation of

other facts consistent with the challenged pleading could not possibly cure the deficiency,”

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and

citations omitted).

C.      Motion for Summary Judgment Under Federal Rule of Civil Procedure 56

        Courts will grant a motion for summary judgment if “the pleadings, depositions, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.




                                                  14
Civ. P. 56(c). When ruling on a motion for summary judgment, courts must view the evidence in

the light most favorable to the nonmoving party. Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330,

333 (D.C. Cir. 1992). The nonmoving party, however, cannot rely on “mere allegations or

denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for

trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation and internal

quotation marks omitted). Under Rule 56, “if a party fails to establish the existence of an

element essential to that party’s case and on which that party will bear the burden of proof at

trial,” summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C.

1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for

summary judgment bears the burden of establishing the absence of evidence that supports the

non-moving party’s case. Id. In considering a motion for summary judgment, “the court must

draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S.

133, 150 (2000) (citations omitted).

                                      III. LEGAL ANALYSIS

A.      The Claims Against The United States

        The United States moves to dismiss the plaintiff’s six FTCA claims pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally United States Mot. at 8-20. For

the reasons explained below, Counts One, Three, Four, and Five will be dismissed for lack of

subject matter jurisdiction, part of Count Six will also be dismissed for lack of subject matter

jurisdiction and the remainder of this Count will be dismissed for failure to state a claim, and the

United States’ motion to dismiss Count Two will be denied.




                                                   15
       1.      Counts One, Four, Five, and Six of the United States Complaint

       The United States argues that the plaintiff’s false arrest and imprisonment claim

associated with his March 2003 arrest (Count One), the intentional infliction of emotional

distress claim (Count Four), the conversion of property claim (Count Five), and the loss of future

earnings, humiliation and damage to reputation claim (Count Six) should be dismissed for lack

of subject matter jurisdiction because these claims are time-barred. See United States Mot. at 8-

9. More specifically, the United States contends that because these Counts arise out of events

that occurred between March 6 and 10, 2003, in accordance with the FTCA’s two-year

limitations, they had to be presented in writing to the appropriate federal agency by March 10,

2005. See id. at 7-10. However the United States represents that the Capitol Police, the

appropriate federal agency for most of the claims asserted by the plaintiff, did not receive the

plaintiff’s administrative claim until March 17, 2005, approximately one week after the

limitations period expired. See id., Ex. 1 (Decl. of Cecelia E. Barrios) ¶ 4; id., Ex. 4 (Decl. of

William H. Emory) ¶ 3.

       For his part, the plaintiff asserts that his administrative claim was mailed on February 25,

2005, from the District of Columbia offices of his attorneys to the address listed for the Capitol

Police, which was in accordance with instructions provided by that agency’s General Counsel’s

Office. Pl.’s Opp’n to United States Mot. at 14-15; id., Ex. 1 (Decl. of Lory C. Stone), Ex. A

(Instructions for Filing a Tort Claim with the United States Capitol Police). Unbeknownst to the

plaintiff, however, because this address has the same zip code as the United States Senate, his

administrative claim was subject to various mail screening procedures, resulting in the delivery

of his administrative claim being delayed. Pl.’s Opp’n to United States Mot. at 14-15; id., Ex. 1




                                                 16
(Decl. of Lory C. Stone) ¶¶ 5-9.14 The plaintiff therefore argues that a presumption of mailing

satisfies the presentment requirement of the FTCA, Pl.’s Opp’n to United States Mot. at 15-16,

that the evidence is insufficient to show when his claim was actually received, id. at 17-19,15 that

his claim was timely received by the Senate Post Office, which should be deemed an agent of the

Capitol Police, id. at 19-20, and finally that the limitations period should be equitably tolled in

light of the unforeseen delays in the processing of mail, id. at 21-26.

         It is well settled that the United States is immune from suit unless Congress has expressly

provided consent to be sued; that is, when Congress has waived the United States’ sovereign

immunity. E.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit. Sovereign immunity is

jurisdictional in nature.” (internal citations omitted)). “The FTCA operates as a limited waiver of

sovereign immunity, rendering the United States amenable to suit for certain, but not all, tort

claims.” Rashad v. D.C. Central Detention Facility, 570 F. Supp. 2d 20, 23 (D.D.C. 2008)

(citing Richards v. United States, 369 U.S. 1, 6 (1962)).

         The date the plaintiff’s administrative claim was received is important because a party

asserting jurisdiction under the FTCA must satisfy administrative exhaustion requirements by

“present[ing] the claim to the appropriate federal agency.” 28 U.S.C. § 2675(a); see McNeil v.

14
   The address where the plaintiff mailed his claim is 119 D Street NE, Washington, D.C. 20510-7218. Pl.’s Opp’n
to United States Mot. at 10. During the relevant time period, mail sent to this zip code was initially sent to an off-
site facility for irradiation, then directed back to the Senate Post Office before finally being delivered to the Capitol
Police offices, a process which typically took between 7 to 10 days from placement of a letter in the mail to delivery
by the Senate Post Office. See id., Ex. 2 (Stipulation of Facts Regarding Processing of Mail by the United States
Senate Post Office) ¶¶ 2-5. News accounts also reported that mail delivery on Capitol Hill was slowed in the middle
of March, 2005, due to the anthrax scare. See Jennifer Yachnin, Hill Mail Still On Schedule Despite USPS’ V St.
Closure, Roll Call (Mar. 16, 2005), available at 2005 WLNR 4061197.
15
   In this regard, the plaintiff points out that the United States has provided neither a copy of the stamped
administrative claim form, nor the actual envelope in which the plaintiff’s claim was mailed. Pl.’s Opp’n to United
States Mot. at 17-18. An organizational representative from the Capitol Police stated in a deposition that it was
generally the practice to retain envelopes in the claim file, but that was not done in this case. See id. at 18 n.11.




                                                           17
United States, 508 U.S. 106, 113 (1993). In fact, the United States Code makes clear that a “tort

claim against the United States shall be forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim accrues,” 28 U.S.C. § 2401(b), and

the associated regulations explain that a claim is deemed presented when it is received by the

agency, 28 C.F.R. § 14.2(a) (2005); id. § 14.2(b)(1).16 Under the FTCA, a claim accrues “by the

time a plaintiff ‘has discovered both his injury and its cause.’” Sexton v. United States, 832 F.2d

629, 633 (D.C. Cir. 1987) (quoting United States v. Kubrick, 444 U.S. 111, 120 (1979)). If the

plaintiff does not meet the presentment of claim requirements of 28 U.S.C. §§ 2401(b) and

2675(a), the Court lacks jurisdiction to entertain the claim. Stokes v. United States Postal Serv.,

937 F. Supp. 11, 14 (D.D.C. 1996) (citing Jackson v. United States, 730 F.2d 808, 809 (D.C. Cir.

1984)).

          In this case, however, the Court need not resolve whether the plaintiff’s claim was timely

presented to the Capitol Police or whether equitable tolling applies to the FTCA’s statute of

limitations. Norman v. United States, 467 F.3d 773, 776 (D.C. Cir. 2006) (declining to decide

whether equitable tolling applies to the FTCA). These determinations are unnecessary because

even if the administrative claim was timely presented, the Court concludes that the plaintiff’s

related judicial claims would still have to be dismissed for lack of subject matter jurisdiction due

to the fact that they fall within the FTCA exemptions of 28 U.S.C. § 2680, and are therefore

barred by sovereign immunity. Edmonds v. United States, 436 F. Supp. 2d 28, 35 (D.D.C. 2006)

16
   For the most part, the circuit courts that have considered whether claims have been timely presented under the
FTCA have concluded that a claim is presented when the federal agency is in actual receipt of the claim. E.g.,
Lightfoot v. United States, 564 F.3d 625, 628 (3rd Cir. 2009) (collecting cases and holding that a plaintiff must
demonstrate that the federal agency was in actual receipt of the claim); Drazan v. United States, 762 F.2d 56, 58 (7th
Cir. 1985) (“[T]he district court was quite right to hold that mailing is not presenting; there must be receipt.”); but
see Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1240 (11th Cir. 2002) (holding that proof of mailing gave rise to a
presumption of receipt, similar to the common law mailbox rule).




                                                          18
(citing Sloan v. United States Dep’t of Housing & Urban Dev., 236 F.3d 756, 759 (D.C. Cir.

2001)); cf. NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008) (“It is axiomatic that

subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.”

(citation omitted)).

        To begin with, the plaintiff’s detention and false arrest claim (Count One) fails because it

is barred by the discretionary function exemption to the FTCA. See 28 U.S.C. § 2680(a). In

relevant part, that provision shields the United States from liability from “[a]ny claim . . . based

upon the exercise or performance or the failure to exercise or perform a discretionary function or

duty on the part of a federal agency or an employee of the Government, whether or not the

discretion involved be abused.” Id. This exemption “marks the boundary between Congress’

willingness to impose tort liability upon the United States and its desire to protect certain

governmental activities from exposure to suit by private individuals,” Shuler v. United States,

531 F.3d 930, 933 (D.C. Cir. 2008) (quoting United States v. Varig Airlines, 467 U.S. 797, 808

(1984)), and its purpose is to “prevent judicial second-guessing of legislative and administrative

decisions grounded in social, economic, and political policy through the medium of an action in

tort,” United States v. Gaubert, 499 U.S. 315, 323 (1991) (quoting Varig Airlines, 467 U.S. at

814).

        The Supreme Court has established a two-part test to determine whether the conduct

alleged by the plaintiff falls under the discretionary function exemption. See id. at 322-23. First,

the act at issue must “involv[e] an element of judgment or choice,” meaning that no federal

statute, regulation, or policy specifically prescribes a course of action for the employee to follow.

See Sloan, 236 F.3d at 759 (quoting Gaubert, 499 U.S. at 322). Second, assuming that an

element of judgment is involved, it must be determined whether the judgment is of a kind that




                                                 19
the discretionary function exception is designed to protect, notably, “governmental actions and

decisions based on considerations of public policy.” Id. at 760 (quoting Gaubert, 499 U.S. at

323). If the discretionary function exemption applies, the United States is immune from suit and

the Court lacks subject matter jurisdiction over the claim. Id. at 759; see Cope v. Scott, 45 F.3d

445, 448 (D.C. Cir. 1995) (“Discretionary function determinations are jurisdictional in nature.”).

       In this case, the decision to detain and then arrest the plaintiff in the Capitol Building

falls well within the scope of the discretionary function. Capitol Police officers are empowered

by federal law “to make arrests within the United States Capitol Buildings . . . for any violations

of any law of the United States,” 2 U.S.C. § 1961(a) (2006), and based on his appearance that

day, the Court previously determined that it was “entirely reasonable” for the Capitol Police to

believe that the plaintiff was, at a minimum, engaged in an unlawful demonstration in the Capitol

Building in violation of 40 U.S.C. § 5104(e)(2)(G). See Olaniyi, 416 F. Supp. 2d at 54.

“Making an arrest is a discretionary function,” Bailey v. United States Marshall Serv., 584 F.

Supp. 2d 128, 132 (D.D.C. 2008), and “[d]ecisions regarding the timing of arrests are the kind of

discretionary government decisions, rife with considerations of public policy, that Congress did

not want the judiciary ‘second guessing.’” Schuler, 531 F.3d at 934 (quoting Varig Airlines, 467

U.S. at 814); see Deuser v. Vecera, 139 F.3d 1190, 1195 (8th Cir. 1998) (“Law enforcement

decisions of the kind involved in making or terminating an arrest must be within the discretion

and judgment of enforcing officers.”). Accordingly, the detention and false arrest components of

Count One of the Complaint is barred by the discretionary function exemption of the FTCA.

       As to the conversion of property claim (Count Five), the Court concludes that this claim

fails based on 28 U.S.C. § 2680(c), which exempts the United States from liability for “[a]ny

claim arising in respect of . . . the detention of any goods, merchandise, or other property by any




                                                 20
officer or customs or excise or any other law enforcement officer.” Id. The Supreme Court has

interpreted this exemption broadly, explaining that it includes claims “resulting from the

negligent handling or storage of detained property,” Kosak v. United States, 465 U.S. 848, 854

(1984), and recently held that the phrase “any other law enforcement officer” includes “law

enforcement officers of whatever kind,” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008).

Although the Supreme Court did not delineate what constitutes “detention” in this context, id. at

218 n.2, the Sixth Circuit has observed that “[a] detention is generally associated with a period of

temporary custody or delay. . . . It is a term often associated with an ongoing investigation.”

Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir. 1994); see Chapa v. United States Dep’t of

Justice, 339 F.3d 388, 390-91 (5th Cir. 2003) (agreeing with this interpretation of detention).

Indeed, in the legal sense of the word, detention consists of “[t]he act or fact of holding a person

[or property] in custody,” Black’s Law Dictionary 514 (9th ed. 2004), and “custody,” in turn, is

“[t]he care and control of a thing or person for inspection, preservation, or security,” id. at 441.

        Applying that understanding of “detention” here, the Court concludes that 28 U.S.C. §

2680(c) encompasses the plaintiff’s conversion of property claim. At the point in time when the

bomb technicians entered the van, the plaintiff and Patel were in custody, and the keys to the van

were in the possession of the Capitol Police and the FBI, who were actively investigating

whether the vehicle was connected to the plaintiff’s presence at the Capitol Building. In the

course of this investigation, the street where the van was parked was closed to pedestrian and

vehicle traffic, and access to the van was limited to law enforcement officers and bomb

technicians, who exercised control over the van in order to inspect it for hazards and secure the

scene. In that sense, the van was in temporary custody of law enforcement officials and,




                                                 21
therefore, under detention for purposes of 28 U.S.C. § 2680(c). Accordingly, the Court lacks

subject matter jurisdiction over the plaintiff’s conversion claim.17

         With respect to Count Six, it fails because the United States has not waived its sovereign

immunity for claims “arising out of” alleged acts of libel or slander. 28 U.S.C. § 2680(h).

Although this Count is styled as one for loss of future earnings, humiliation, and damage to

reputation, United States Compl. ¶¶ 68-72, the “label which a plaintiff applies to a pleading does

not determine the nature of the cause of action which he states,” Edmonds, 436 F. Supp. 2d at 35

(quoting Johnson v. United States, 547 F.2d 688, 691 (D.C. Cir. 1976)). Instead, the Court must

scrutinize the alleged cause of the plaintiff’s injury in assessing the nature of his claim. Kugel v.

United States, 947 F.2d 1504, 1507 (D.C. Cir. 1991).

         Kugel is illustrative in this regard. The plaintiff in Kugel alleged that the FBI conducted

an investigation into his business practices and, even though he was later exonerated, he was

injured when reports of the investigation appeared in the media. See id. at 1506. The plaintiff

brought suit under the FTCA claiming that several municipalities canceled their contracts or

refused to do business with him, that he was forced to file for bankruptcy, and that he suffered

public ridicule and humiliation resulting from the cancellations. Id. The District of Columbia

Circuit examined the nature of the claims and determined that the cause of the injury was not the

FBI investigation, but was instead the “dissemination of information associated with the



17
    The Court does not consider how the conversion claim might apply to the FBI inventory search because the
plaintiff does not seek to impose liability on the FBI under the FTCA for that action. Pl.’s Opp’n to United States
Mot. at 10 n.4. In fact, any claim against the FBI under the FTCA appears to be time-barred because the plaintiff
failed to institute a civil action against it within six months “after the date of mailing, by certified or registered mail,
of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Here, the FBI
denied the plaintiff’s administrative claim on October 25, 2005, United States Mot., Ex. 2 (Decl. of Sophia Marta
Ivashkiv) ¶ 2, and therefore the plaintiff was required to bring this action in April of 2006 to maintain a claim
against the FBI. However, this action was not initiated until December of 2006, well after the six month limitation
period had expired.



                                                            22
investigation.” Id. at 1507. The Circuit thus concluded that the plaintiff’s claim sounded in

defamation and was therefore barred under 28 U.S.C. § 2680(h). Id.

        The same rationale applies here. Upon scrutinizing the alleged cause of his injury, it

becomes clear that Count Six is essentially a defamation claim. In particular, the plaintiff alleges

that because of his arrest, his supporters withdrew funding from future productions of his play,

resulting in humiliation and damage to his reputation, and that some of his “best patrons stopped

purchasing [his] artwork.” See United States Compl. ¶¶ 70-72. Significantly, the complaint

states that “[n]umerous newspapers…ran articles covering the arrest. As a result, many of [the

plaintiff’s] supporters withdrew their support for ‘David/Dafidi’ after the arrest because they did

not want to be associated with a ‘terrorist.’” Id. ¶ 71. Thus, the alleged harm did not result from

the arrest, but rather the dissemination of information about the arrest which purportedly harmed

the plaintiff’s reputation in the eyes of third parties. Such a claim “resound[s] in the heartland of

the tort of defamation,” Jimenez-Nieves v. United States, 682 F.2d 1, 6 (1st Cir. 1982), and is

therefore barred under 28 U.S.C. § 2680(h). Kugel, 947 F.2d at 1507; Edmonds, 436 F. Supp. 2d

at 36-37; see Wuterich v. Murtha, 562 F.3d 375, 387 (D.C. Cir. 2009) (instructing district court

to dismiss plaintiff’s defamation suit against the United States because it is barred by 28 U.S.C. §

2680(h)).

        The claim for intentional infliction of emotional distress (Count Four) is somewhat more

difficult to resolve because it is based on four different events: (1) the plaintiff’s arrest in the

Capitol Building; (2) Detective DePalma’s purported actions during the traffic stop in January

2004; (3) ongoing harassment and intimidation allegedly committed by Detective DePalma and

other members of the federal government; and (4) Secret Service Agent Hull’s alleged threat to

confiscate the plaintiff’s immigration papers. See United States Compl. ¶¶ 57-61. The last three




                                                  23
of these events are obviously timely, each having occurred within two years of March 17, 2005,

the date the United States acknowledges receiving the plaintiff’s administrative claim. United

States Mot. at 10.

       To the extent that this Count concerns the arrest by the Capitol Police officers, even

though 28 U.S.C. § 2680(h) waives the United States’ sovereign immunity for certain intentional

torts committed by law enforcement officers, “claims of intentional torts under § 2680(h) must

clear the § 2680(a) discretionary function hurdle.” Medina v. United States, 259 F.3d 220, 226

(4th Cir. 2001); Gray v. Bell, 712 F.2d 490, 508 (D.C. Cir. 1983). Because the Court has already

found that the decision to arrest the plaintiff fell under the discretionary function exemption,

insofar as this Count is brought against the Capitol Police for their conduct in arresting the

plaintiff, the Court lacks subject matter jurisdiction to consider it. That component of the claim

must therefore be dismissed, and the remaining components of the claim will be addressed later

in this opinion.

       2.      Count Three of the United States Complaint

       Count Three of the United States Complaint contends that the Capitol Police and the FBI

“maliciously [instituted] proceedings against [the plaintiff] by detaining and arresting him, and

by initiating proceedings against him despite having determined on the scene that [he] possessed

no explosives and that there was insufficient evidence to sustain [the] charges.” United States

Comp. ¶ 52. The United States argues that the plaintiff’s malicious prosecution claim is also

barred by the discretionary function exception of the FTCA because the plaintiff is essentially

challenging the government’s decision to prosecute him. See United States Mot. at 10-13.

       The plaintiff concedes that the discretionary function exception of the FTCA generally

prohibits malicious prosecution claims brought against prosecutors, Pl.’s Opp’n to United States




                                                 24
Mot. at 29, but argues that the exception should not apply to the Capitol Police in this case

because malicious prosecution claims against law enforcement officers are expressly allowed

under a different provision of the FTCA, namely, 28 U.S.C. 2680(h), id. at 29-30. The Court

does not agree.

        As noted in connection with the plaintiff’s intentional infliction of emotional distress

claim, the District of Columbia Circuit has made it clear that “the plain language of 28 U.S.C. §

2680(a) states that the FTCA’s general waiver of sovereign immunity is inapplicable to ‘any

claim’ based on a discretionary function.” Gray, 712 F.2d at 507. Consequently, a plaintiff

“must clear the discretionary function hurdle” in order to sustain a malicious prosecution claim.

Id. at 508 (internal quotations omitted); see Medina, 259 F.3d at 226. Because prosecutorial

decisions “as to whether, when, and against whom to initiate prosecution are quintessential

examples of governmental discretion,” Gray, 712 F.2d at 513, this Court has previously

concluded that a “decision to prosecute . . . generally having been the byproduct of an

investigation, logically calls for the investigation itself also being treated as a discretionary

function.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 199 (D.D.C. 2002) (Walton, J.); see

Bragdon v. United States, 537 F. Supp. 2d 157, 159-60 (D.D.C. 2008) (determining that a

negligent investigation claim brought against an FBI agent was barred by the discretionary

function exemption); Wright v. United States, 963 F. Supp. 7, 17 (D.D.C. 1997) (“If the function

of identifying what evidence to submit to a judicial tribunal is discretionary for prosecutors . . . it

should be similarly discretionary for police officers.”).

        Here, the acts forming the basis for Count Three are the arrest of the plaintiff in the

Capitol Building and the decision by the Capitol Police to continue his detention despite having

determined that he did not possess any explosives or other hazardous materials. United States




                                                  25
Compl. ¶ 52. The Court cannot grasp a meaningful way in which the acts of the Capitol Police

can be considered separate and apart from the decision of whether to prosecute, as there likely

would have been no prosecution had there been no arrest. And where conduct “during an

investigation is ‘inextricably tied’ to the overall discretionary decision to investigate and then

prosecute a plaintiff, such actions are included within the discretionary function exemption to

FTCA jurisdiction.” Tabman v. F.B.I., 718 F. Supp. 2d 98, 105 (D.D.C. 2010) (quoting

Gustave-Schmidt, 226 F. Supp. 2d at 199). That being the situation here, even if the Capitol

Police acted in an “improper, tortious, [or] constitutionally defective manner” in conducting the

investigation, their actions nonetheless fall within the discretionary function exemption.

Gustave-Schmidt, 226 F. Supp 2d at 199 (citing Gray v. Bell, 712 F.2d at 515-16); see also

Shuler, 531 F.3d at 935 (“[T]he discretionary function immunizes even government abuses of

discretion.”). Accordingly, the plaintiff’s malicious prosecution claim is dismissed for lack of

subject matter jurisdiction.

         3.       Count Two of the United States Complaint

         The United States moves to dismiss the plaintiff’s false arrest and imprisonment claim

based on the January 2004 vehicle stop for failure to state a claim upon which relief may be

granted. United States Mot. at 14-16. In its opening motion, the United States does not attempt

to justify the initial traffic stop, but claims that Detective DePalma, who arrived after the stop,

was aware of the plaintiff’s child custody dispute with his ex-wife and on that basis had probable

cause to question the plaintiff about the custody status of the children. Id. at 15.18 In opposition,



18
   In its reply brief, the United States asserts that there was reasonable suspicion to stop the plaintiff based on his
van’s dirty out of state license plates, snow on the van, and because the plaintiff was driving near the Capitol
Building on January 20, 2004, when heightened security measures were in place for the President’s State of the
Union Address. United States Reply at 16; id., Ex. 6 (Decl. of Joseph DePalma). The United States then claims that
the events that transpired during the course of the traffic stop did not violate the Fourth Amendment. See id. at 15-
                                                                                               (continued . . .)


                                                          26
the plaintiff contends that there was no probable cause to stop his van and maintains that he has

stated a claim for false arrest because the stop was unlawfully prolonged by Detective DePalma’s

questions and the canine search. See Pl.’s Opp’n to United States Mot. at 35-37. Specifically,

the plaintiff claims he was stopped by the Capitol Police while driving near the Capitol Building,

United States Compl. ¶ 34, and was told that the stop was made because “there was snow on the

van and because the Michigan tags made them ‘suspicious.’” Id. ¶ 35. The plaintiff then alleges

that Detective DePalma, who did not make the initial stop, subsequently arrived on the scene and

seemed to be supervising the activities. Id. During the stop, Detective DePalma allegedly

“ordered [the plaintiff] out of the van, and asked [him] questions about why he was back in the

District of Columbia, . . . asked about [the plaintiff’s] custody status of his children and made

other intimidating remarks [and] had dogs search [the] van while [the] children remained in it.”

Id. ¶ 48. As a result, the plaintiff maintains that his “movement was limited to a fixed area near

Detective DePalma, whose words and conduct limited [the plaintiff’s] free movement.” Id.

         The Court finds that Count Two adequately states a claim for false arrest. To support a

claim of false arrest under District of Columbia law,19 the plaintiff must allege that he was

unlawfully detained. Dingle v. District of Columbia, 571 F. Supp. 2d 87, 95 (D.D.C. 2008)

(citing Dent v. May Dep’t Stores Co., 459 A.2d 1042, 1044 (D.C. 1982) (“The gist of any

complaint for false arrest or false imprisonment is an unlawful detention . . . .” (internal

quotations omitted)). Being unlawfully detained for “any amount of time” is sufficient to make

out a claim for false arrest or false imprisonment. Marshall v. District of Columbia, 391 A.2d


(. . . continued)
18. However arguments raised for the first time in reply briefs are deemed waived, e.g., Penn. Elec. Co. v. FERC,
11 F.3d 207, 209 (D.C. Cir. 1993), and the Court will not consider the impact of this argument at this time.
19
   District of Columbia substantive law applies because the events giving rise to the complaint occurred in this
jurisdiction. 28 U.S.C. § 1346(b)(1); Thomas v. Nicholson, 539 F. Supp. 2d 205, 214 n.6 (D.D.C. 2008).



                                                         27
1374, 1380 (D.C. 1978). Here, the United States does not claim in its motion that the plaintiff

was pulled over for committing a traffic violation. In any event, the fact that the plaintiff’s van

had out-of-state license plates and uncleared snow on it are not enough, standing alone, for the

Court to find probable cause to stop the van.20 It is also implausible that the plaintiff’s

involvement in a custody dispute can provide a basis for the initial stop, because on the facts of

this case the identity of the driver and the existence of the custody dispute would only become

apparent after the van was pulled over.

         Even if the Court determined that there was reasonable suspicion to justify the initial

stop, the plaintiff has alleged a number of events that transpired after this occurred, namely,

Detective DePalma’s arrival on the scene, the questioning by Detective DePalma, and the canine

search as grounds supporting Count Three. United States Compl. ¶ 48.21 The Court recognizes

that police officers may conduct brief investigative stops provided they have “reasonable,

articulable suspicion” that criminal activity is afoot, Illinois v. Wardlow, 528 U.S. 119, 124

(2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)), and that in the automobile context the

police may lawfully inquire into matters unrelated to the justification for the stop so long as those

inquiries do not measurably extend the duration of the encounter. E.g., Arizona v. Johnson, __

U.S. __, __, 129 S. Ct. 781, 788 (2009); see also Illinois v. Caballes, 543 U.S. 405, 407 (2005)

(“[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of

execution unreasonably infringes interests protected by the Constitution.”). Nonetheless,

20
    The Court notes that there may have been articulable suspicion to stop the plaintiff if the officer recognized the
plaintiff before he was pulled over, but that is not alleged here. Moreover, in the District of Columbia having an
illegible or obstructed license plate is a moving infraction with an associated $50.00 fine. D.C. Mun. Regs. tit. 18, §
2600 (2010). But again, this is not asserted as the reason the plaintiff’s van was stopped.
21
   The Court also notes that the parties dispute the scope and circumstances of the canine search, with the plaintiff
representing that it extended to the interior of his van while the children were in it, Pl.’s Opp’n to United States Mot.
at 36-37, and Detective DePalma claiming that the plaintiff consented to the search, United States Reply, Ex. 6
(Decl. of Joseph DePalma) at 2.



                                                           28
whether a traffic stop has been unlawfully extended is usually a fact-specific inquiry, United

States v. Hutchinson, 408 F.3d 796, 799 (D.C. Cir. 2005), which requires an examination of

“whether the police diligently pursued a means of investigation that was likely to confirm or

dispel their suspicions quickly.” United States v. Vinton, 594 F.3d 14, 24 (D.C. Cir. 2010)

(quoting United States v. Sharpe, 470 U.S. 675, 685-86 (1985)).

        The factual record in this case may ultimately clarify the circumstances surrounding the

January 2004 stop of the plaintiff’s van, such as the reason the plaintiff’s van was pulled over,

the duration of the encounter, and the scope of the canine search. To survive a motion to

dismiss, however, a complaint need only “contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Iqbal, __ U.S. at __, 129 S. Ct. at 1949

(quoting Twombly, 550 U.S. at 570). Applying that minimal standard of review here, the Court

concludes that the plaintiff has adequately alleged that he was falsely imprisoned during the

vehicle stop in January 2004. Accordingly, the United States’ motion to dismiss Count Two for

failure to state a claim is denied.

        4.      Count Four of the United States Complaint

        The remaining components of the plaintiff’s intentional infliction of emotional distress

claim that remain alive are based on Detective DePalma’s purported actions during the vehicle

stop in January 2004, the alleged ongoing harassment of the plaintiff by members of the federal

government, and the statement allegedly made by Secret Service Agent Hull threatening to have

the plaintiff deported “for no legal reason.” See United States Compl. ¶¶ 58-61. The United

States has also moved to dismiss this Count of the complaint for failure to state a claim upon

which relief can be granted, contending that none of the allegations rise to the level of legally

actionable conduct. United States Mot. at 19. The plaintiff responds that the “year-long




                                                  29
campaign of harassment and psychological warfare” engaged in by these defendants is

sufficiently extreme and outrageous to support this claim. Pl.’s Opp’n to United States at 38-40.

       Under District of Columbia law, a claim of intentional infliction of emotional distress

requires that the plaintiff show “(1) extreme and outrageous conduct on the part of the defendant

which (2) either intentionally or recklessly (3) causes the plaintiff severe emotional distress.”

Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 255 (D.C. Cir. 2008) (quoting Larijani v.

Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)). As the District of Columbia Circuit has

explained, “a case of intentional infliction of emotional distress is made out only if the recitation

of the facts to an average member of the community would arouse his resentment against the

actor, and lead him to exclaim ‘Outrageous!’” Larijani, 791 A.2d at 44 (quoting Restatement

(Second) of Torts § 46 (1965)); see Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.

1982) (explaining that liability will be found where the conduct is “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”) (quoting Restatement (Second) of

Torts § 46 cmt. 73 (1965)). This standard “is not an easy one to meet,” Drejzo v. Vaccaro, 650

A.2d 1308, 1312 (D.C. 1994), and “[l]iability will not be imposed for mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities,” District of Columbia v. Tulin, 994

A.2d 788, 800 (D.C. 2010) (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998)).

       Here, the Court concludes that none of the plaintiff’s allegations asserted in support of

Count Four state a claim for intentional infliction of emotional distress. To begin with, having a

police officer inquire about the custody status of children he knows have been the subject of a

custody dispute during the course of a vehicle stop is just not the type of behavior that would

cause an average member of the District of Columbia community to exclaim “Outrageous!”




                                                 30
Larijani, 791 A.2d at 44. This is especially so in the circumstances of this case, given the

plaintiff’s admission that Detective DePalma was aware of the plaintiff’s divorce and child

custody proceedings. United States Compl. ¶ 36. Even if Detective DePalma’s statements could

be construed as demeaning, it is clear that “insults, indignities, threats, annoyances, petty

oppressions, or other trivialities” are insufficient to support a claim for intentional infliction of

emotional distress under District of Columbia law. Tulin, 994 A.2d at 801.

        The complaint also fails to state a claim for intentional infliction of emotional distress for

events arising out of the alleged pattern of harassment and the investigation by the Secret Service

agents. The plaintiff admits that the investigation commenced after his ex-wife apparently

contacted authorities in Michigan and reported that the plaintiff was going to kill the President.

United States Compl. ¶ 40. Given the gravity of this allegation, the investigation and

questioning by the Secret Service, including the associated threat allegedly made by Agent

Hull’s to have the plaintiff deported, was not so unreasonable to be considered extreme or

dangerous. Cf. United States v. Kosma, 951 F.2d 549, 557 (3rd Cir. 1991) (“[A] threat [against

the President] sets in motion an entire army of Secret Service agents and law enforcement

officials who must investigate the threat, take additional safety precautions to protect the

President, and extreme cases, alter the President’s schedule.”); see also United States v.

Cvijanovich, 556 F.3d 857, 861 (8th Cir. 2009) (noting testimony from Secret Service agent that

all threats are taken seriously, describing the investigative procedures employed after a threat is

made, and explaining that an investigation ends when the agents are satisfied there is no threat),

but in any event, surely cannot be considered extreme or outrageous.

        The role of the plaintiff’s ex-wife in reporting the threat explains why members of the

federal government were purportedly harassing the plaintiff and were in “communications” with




                                                  31
her. United States Compl. ¶¶ 59-60. Even if the threat was completely baseless, neither the

follow-up investigation by the Secret Service nor the fact that the prosecutors were in contact

with the plaintiff’s ex-wife is “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.” Tulin, 994 A.2d at 800 (quoting Larijani, 791 A.2d at 44). And this is

so even regarding the alleged threat to have the plaintiff deported, which if made may have been

improper. Accordingly, the plaintiff’s claim for intentional infliction of emotional distress is

dismissed for failure to state a claim upon which relief can be granted.

B.       The Claims Against the District of Columbia

         The plaintiff seeks to impose liability on the District of Columbia pursuant to 42 U.S.C. §

1983 for events that that allegedly transpired during his confinement in the Mental Health Unit.

Am. Compl. ¶¶ 107-111.22 For the following reasons, the Court concludes that the plaintiff has

adequately stated a claim for a violation of 42 U.S.C. § 1983, and that summary judgment is

premature at this point given the limited discovery that has occurred.




22
   The plaintiff also brought several tort claims against the District of Columbia, see Am. Compl. ¶¶ 112-122, and
requested that punitive damages be awarded, id. ¶ 124. As to the motion to dismiss the tort claims, the plaintiff’s
opposition states that he has “reviewed arguments of the District of Columbia with respect to” these tort claims and
“will voluntarily dismiss” them. Pl.’s Opp’n to District of Columbia Mot. at 1 n.1. However, four months before
the plaintiff filed this opposition, the District of Columbia filed an Answer, Docket Entry 97, and pursuant to
Federal Rule of Civil Procedure 41(a), the plaintiff is prohibited from voluntarily dismissing these counts except
with leave of the Court, Fed. R. Civ. P. 41(a)(2), or by filing a signed stipulation of dismissal “by all parties who
have appeared,” Fed. R. Civ. P. 41(a)(1)(A)(ii). The plaintiff has not sought such leave of the Court and no signed
stipulation by the parties has been filed. Nevertheless, the Court finds that it is in the interest of justice to grant
plaintiff leave to voluntarily dismiss these claims and will therefore sua sponte grant the plaintiff leave to do so.
With respect to his punitive damages request, the plaintiff’s opposition fails to address the District of Columbia’s
argument that punitive damages are inappropriate in this case, District of Columbia Mot. at 27-29, and therefore the
issue is deemed conceded. Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003).




                                                          32
         1.       The Complaint Adequately States a Claim for a Violation of 42 U.S.C. § 1983

         The District of Columbia has moved to dismiss the plaintiff’s § 1983 claim, asserting,

among other things, that there is no respondeat superior liability under § 1983, that the complaint

does not point to a formal or informal policy of the District of Columbia that caused the

plaintiff’s injury, and that no custom or policy was the moving force behind the alleged

constitutional wrongs inflicted on the plaintiff. See District of Columbia Mot. at 14.23

         “In order to hold a municipality liable for civil rights violations of its employees under 42

U.S.C. § 1983, the municipality must have acted in accordance with a ‘government policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy.’” Sanders v. District of Columbia, 522 F. Supp. 2d 83, 87-88 (D.D.C.

2007) (quoting Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 694

(1978)); see Fierson v. District of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007) (“[T]o

impose liability on the District under 42 U.S.C. § 1983, [the plaintiff] must show not only a

violation of his rights under the Constitution or federal law, but also that the [District’s] custom

or policy caused the violation.” (quoting Warren v. District of Columbia, 353 F.3d 36, 38 (D.C.

Cir. 2004))). “Respondeat superior, or vicarious liability, will not attach under § 1983, and

therefore a municipality cannot be held liable solely because it employs a tortfeasor.” Burnett v.


23
   The District of Columbia also argues that it cannot be found liable because the personnel at the jail were
independent contractors. District of Columbia Mot. at 9-11. However, as the plaintiff correctly points out, Pl.’s
Opp’n to District of Columbia Mot. at 9-12, for purposes of § 1983 the personnel at the Mental Health Unit of the
D.C. Jail who treated him can be found to have been acting under color of state law because they were performing a
municipal function under authority granted by a contract with the District of Columbia, West v. Atkins, 487 U.S. 42,
54-55 (1988). The District of Columbia is constitutionally obligated to provide inmates with medical care, Estelle v.
Gamble, 429 U.S. 97, 104 (1976), and pursuant to the authority granted by D.C. Code § 24-211.02 (2001), the
District of Columbia Department of Corrections contracted with the Center for Correctional and Health Policy
Studies (“CCHPS”) to provide medical services to inmates of the D.C. Jail. District of Columbia Mot., Ex. B
(Contract between the District of Columbia and CCHPS). As such, the CCHPS employees at the Mental Health
Unit were performing a municipal function, in a municipal facility, under authority granted to them by municipal
law. Accordingly, the District cannot avoid liability merely because the plaintiff’s alleged injury occurred at the
hands of a third party contracted to perform the services he claims caused him injury.



                                                         33
Sharma, 511 F. Supp. 2d 136, 141 (D.D.C. 2007) (internal quotation marks and citations

omitted). Accordingly, to survive a motion to dismiss, a complaint asserting a § 1983 claim

must allege a predicate constitutional violation which was caused by a policy of the District of

Columbia. See Muhammad v. District of Columbia, 584 F. Supp. 2d 134, 138 (D.D.C. 2008)

(quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).

       In this case, the plaintiff has adequately pled a predicate constitutional violation arising

from the alleged forcible administration of antipsychotic medication, Am. Compl. ¶¶ 75, 108,

which if proven at trial would constitute a violation of the due process clause of the Fifth

Amendment. See United States v. Weston, 134 F. Supp. 2d 115, 120 (D.D.C. 2001) (Sullivan,

J.) (citing Riggins v. Nevada, 504 U.S. 127, 133-35 (1992)). The next question then becomes

whether the complaint alleges an affirmative link such that a custom or policy of the District of

Columbia was the moving force behind this alleged violation. Baker, 326 F.3d at 1306.

       There are a number of ways in which a “policy” can be created by a municipality

resulting in its liability under § 1983. Id. One way this can occur is from the government’s

failure “to respond to a need (for example, training of employees) in such a manner as to show

‘deliberate indifference’ to the risk that not addressing the need will result in constitutional

violations.” Id.; see also Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000).

Deliberate indifference is determined by “analyzing whether the municipality knew or should

have known of the risk of constitutional violations” and yet failed to take remedial action.

Baker, 326 F.3d at 1307.

       Upon reviewing the complaint, the Court concludes that it adequately alleges that a

policy of the District of Columbia resulted in the constitutional violations asserted by the

plaintiff. Although it speaks in general terms, the complaint alleges that the District of Columbia




                                                  34
designed and implemented a program at the D.C. Jail that allowed “for the use of force,

including the use of anti-psychotic drugs, when disciplining inmates and pre-trial detainees,”

Am. Compl. ¶ 88, and that these policies “resulted in conduct in violation of the constitutional

rights of the plaintiff,” id. ¶ 87. The complaint also states that the District of Columbia failed to

train the personnel at the Mental Health Unit, which “resulted in a pattern or practice of

excessive disciplinary measures, wrongful administration of drugs, and failure to intervene

and/or punish such conduct.” Id. ¶ 92. It further claims that the District of Columbia’s policies

“allowed [personnel at the jail] to hide unconstitutional or otherwise unlawful conduct without

fear of appropriate discipline, reprisal or conduct,” id. ¶ 89, and that the failure to document the

plaintiff’s injection in the Jail’s medical records is indicative of these policies, id. ¶¶ 75, 90. The

complaint adds that these policies were the “moving force” behind the conduct he was subjected

to, id. ¶ 91, and constituted deliberate indifference to his constitutional rights, id. ¶ 111.

Although the allegations raised by the plaintiff present a close call, the Court concludes he has

adequately alleged that the District of Columbia’s purported policy of deliberate indifference

resulted in his injuries and therefore he has “nudged [his] claim[] across the line from

conceivable to plausible.” Twombly 550 U.S. at 570. Accordingly, the District of Columbia’s

motion to dismiss the plaintiff’s § 1983 claim for failure to state a claim must be denied.

        2.      The District of Columbia’s Motion for Summary Judgment is Premature

        The District of Columbia also moves for summary judgment on the plaintiff’s § 1983

claim, asserting that the medical records fail to demonstrate that he received medication of any

kind while confined in the Mental Health Unit, and that the allegations in the complaint are bald

assertions unsupported by factual evidence. District of Columbia Mot. at 6, 15. The plaintiff

responds that not only are genuine factual issues in dispute, Pl.’s Opp’n to District of Columbia




                                                   35
Mot. at 19-23, but that the motion for summary judgment is premature on the existing record. In

this regard, the plaintiff emphasizes that the record is “especially slim,” and thus moves pursuant

to Federal Rule of Civil Procedure 56(f) for additional discovery. Id. at 23-25; see id., Ex. G.

(Decl. of Jennafer B. Neufeld) (“Neufeld Decl.”). The District of Columbia apparently does not

oppose the motion for additional discovery. See District of Columbia Reply.

       In support of the Rule 56(f) motion, the plaintiff points to the stay of discovery ordered in

this case, Docket Entry 95, and explains that the District of Columbia’s responses to his

interrogatories and document requests are incomplete and that the District of Columbia has failed

to respond to his requests for clarification. Pl.’s Opp’n to District of Columbia Mot. at 24. As to

whether any records have not been produced by the District of Columbia, it appears that the

plaintiff may not have complete records concerning the events of March 7, 2003, the day the

plaintiff was first committed to the Mental Health Unit, or documents concerning any treatment

for diabetes he received while in the Unit prior to March 9, 2003. See id., Ex. E at 1. Moreover,

no depositions of fact witnesses have been taken, id., Ex. G (Neufeld Decl.) ¶ 6, and no

declarations appear to be on file. The limited scope of discovery being sought is detailed in the

plaintiff’s Rule 56(f) motion, id. ¶¶ 4-7, wherein he explains that the discovery he seeks will

ultimately shed light on, inter alia, whether he was forcibly injected with antipsychotic drugs

against his will; the District of Columbia’s awareness that inmates could be injured by such

conduct at the Mental Health Unit; and prior instances of any constitutional violations caused by

the purported District of Columbia’s policies he claims resulted in his injury. Id. ¶ 10.

       While ultimately “[p]roving a failure-to-train claim is no easy task[,]” Atchinson v.

District of Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996) (citing to City of Canton v. Harris, 489

U.S. 378, 388-92 (1989) and City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)), in




                                                36
the context of what is alleged in this case, the Court agrees that the plaintiff could benefit from at

least some further discovery before responding to the District of Columbia’s arguments.

“Summary judgment is premised on the notion that parties will have had ‘adequate time for

discovery’ to establish whether a genuine issue of material fact exists.” Breen v. Peters, 474 F.

Supp. 2d 1, 7 (D.D.C. 2007) (quoting Celotex, 477 U.S. at 322). A grant of summary judgment

is therefore appropriate only if both parties have “had a full opportunity to conduct discovery,”

Anderson, 477 U.S. at 257, and it is “the general rule that ‘decision[s] by summary judgment

[are] disfavored when additional development of facts might illuminate the issues of law

requiring decision,’” Barnes v. District of Columbia, 242 F.R.D. 113, 116 (D.D.C. 2007) (citing

Nixon v. Freeman, 670 F.2d 346, 362 (D.C. Cir. 1982)). Accordingly, the District of Columbia’s

motion for summary judgment is denied without prejudice at this time so that the plaintiff can

conduct limited discovery into the matters identified in his opposition and Rule 56(f) motion.

Once that process is complete, the District of Columbia is free to file a renewed motion for

summary judgment.

C.       The Claims Against the Federal Defendants

         The plaintiff brings Bivens claims against the federal defendants alleging Fourth

Amendment violations resulting from the search of his van. Am. Compl. ¶¶ 97-98. The federal

defendants have moved to dismiss all of the claims, or in the alternative, seek summary

judgment, asserting that the claims are barred by qualified immunity. Fed. Defs.’ Mot. at 8-26.24


24
    Despite the plaintiff’s claims to the contrary, Pl.’s Opp’n to Fed. Defs.’ Mot. at 9-15, the federal defendants are
permitted to raise the defense of qualified immunity at successive stages of the same case independently of earlier
determinations because of “the importance of resolving immunity questions at the earliest possible stage of
litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Indeed, “the legally relevant factors bearing
upon the [qualified immunity] question will be different on summary judgment than on an earlier motion to
dismiss,” because on “summary judgment . . . the plaintiff can no longer rest on the pleadings.” Behrens v. Pelletier,
516 U.S. 299, 309 (1996).




                                                          37
Because of the evidence and declarations submitted with the parties’ pleadings, the Court

determines the federal defendants’ motion is appropriately analyzed as a motion for summary

judgment under Federal Rule of Civil Procedure 56. Fed. R. Civ. Pro. 12(d); see Ctr. for Auto

Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). For the

reasons explained below, the Court concludes that because the initial search of the van was

lawful, and the impoundment and inventory search were both reasonable under the

circumstances, the federal defendants are entitled to qualified immunity.

        1.      The General Legal Framework

        “[G]overnment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (internal quotation marks omitted). “Qualified immunity balances two

important interests – the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, __, 129 S. Ct. 808,

815 (2009). Qualified immunity is an “entitlement not to stand trial or face the other burdens of

litigation” and it “is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). The protection of qualified immunity “applies regardless of

whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based

on mixed questions of law and fact.’” Pearson, 555 U.S. at __, 129 S. Ct. at 815 (quoting Groh

v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). The “qualified immunity

standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly




                                                  38
incompetent or those who knowingly violate the law.’” Hunter, 502 U.S. at 229 (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)).

       Courts had been required to approach in chronological order the qualified immunity

analysis through the two-step inquiry mandated in Saucier v. Katz, 533 U.S. 194 (2001),

assessing first, whether the facts alleged show that the government official’s conduct violated a

“constitutional right,” and then second, whether that right was “clearly established” at the time of

the incident. Id. at 200. With respect to the second step, the “relevant, dispositive inquiry . . . is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. at 202; see Malley, 475 U.S. at 341 (noting that “if officers of reasonable

competence could disagree on the issue, immunity should be recognized”). This analysis “must

be undertaken in light of the specific context of the case, not as a broad general proposition.”

Saucier, 533 U.S. at 201. However, the Supreme Court recently announced that the “sequence

set the forth” in Saucier “should no longer be regarded as mandatory.” Pearson, 555 U.S at __,

129 S. Ct. at 818. Accordingly, now courts are “permitted to exercise their broad discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Id. With these principles as its

guidepost, the Court examines the plaintiff’s allegations regarding the initial search of his van,

the impoundment of the van, and the subsequent inventory search of the van.

       2.      The Initial Search of the Van

               a.      The Defendants Not Involved in the Search of the Van

       At the outset, the Court notes that the plaintiff has alleged that only some of the thirty-

seven federal defendants identified in his second amended complaint actually participated in the

search of his van. Am. Compl. ¶¶ 97-98. In regards to the claims against the Capitol Police




                                                  39
defendants, the plaintiff alleges that defendants “Bracci, DePalma, King, and Nutwell . . .

violated [his] rights by searching his van,” id. ¶ 97, and further claims that defendants “DePalma,

Dineen, Malloy, Meikrantz, and Udell . . . violated [his] Fourth Amendment rights by directing,

supervising, participating in, and/or otherwise assisting with the search of the van.” Id.

         In sworn declarations, however, twenty Capitol Police officers and bomb technicians

represent that while they may have been present during the events on March 6, 2003, they had no

individual involvement in the actual search of the van.25 The plaintiff has not proffered any facts

to refute these representations,26 and without evidence (or in some instances at least an

allegation) of any personal involvement by the defendants listed in footnote 24 of this opinion as

having been involved in the search of his vehicle, the claims against them fail because Bivens

actions cannot be based on a theory of respondeat superior liability. E.g., Risley v. Hawk, 108

25
   The group includes the following Capitol Police defendants: (1) Jordan Bleiden; (2) Charles Boswell; (3) Tyrone
Brooks; (4) Rose Cabezas; (5) Joseph DePalma; (6) Mark Crawford; (7) Gregory Guthrie; (8) Noe Gutierrez; (9)
Elaine Hinkle; (10) Shawn Huycke; (11) Danny McElroy; (12) Preston Nutwell; (13) John Salb; (14) Ryan Schauf;
(15) Kathleen Talbot; (16) John Shark; and (17) Mary Ann P. Turner. See generally Fed. Defs.’ Mot., Ex. 2. The
following defendant bomb technicians make the same representations: (1) John Dineen; (2) Daniel Malloy; and (3)
Robert Meikrantz. See generally id.
26
   The plaintiff has moved pursuant to Federal Rule of Civil Procedure 56(f) for additional discovery on this matter,
Pl.’s Opp’n to Fed. Defs.’ Mot. at 29-30; id., Affidavit of Keith R. Wesolowski (“Wesolowski Aff.”), which the
federal defendants vigorously oppose. See Fed. Defs.’ Reply at 24-31. Unlike the Rule 56(f) motion directed at the
District of Columbia, in the qualified immunity context the Court “must exercise its discretion in a way that protects
the substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to
unnecessary and burdensome discovery or trial proceedings.” Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998);
Behrens, 516 U.S. at 306; see Halbert Intern. Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998) (“In qualified
immunity cases, the Rule 56(f) balancing is done with a thumb on the side of the scale weighing against
discovery.”). Here, the plaintiff states that he has not received discovery from the individuals named for the first
time in his Second Amended Complaint, or discovery concerning the dry run theory, and he needs further
information about “the events and communications depicted” on a tape recording provided to him by the Capitol
Police. Pl.’s Opp’n to Fed. Defs.’ Mot., Wesolowski Aff. ¶¶ 8-10. Because of this insufficient opportunity to
conduct discovery, the plaintiff contends that he has not been able to “assess the veracity of the Federal Defendants’
allegations.” Id. ¶ 11. However the plaintiff does not account for the impact of the declarations or the records
associated with the FBI inventory search, and does not articulate how the information he seeks would lead to the
discovery of genuine and material facts to overcome the qualified immunity defense. The plaintiff’s request for
additional discovery is just too general for the Court to subject over thirty individuals to further discovery, especially
when the majority of them represent under penalty of perjury that they had no personal involvement in the search of
the van. See supra p.34 n. 24. Accordingly, the plaintiff’s Rule 56(f) motion to conduct discovery on this topic is
denied.




                                                           40
F.3d 1396, 1396 (D.C. Cir. 1997); Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369

(D.C. Cir. 1997); Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993). Accordingly, the

claims against the twenty defendants named in the Second Amended Complaint who did not

participate in the initial search of the plaintiff’s van are dismissed.

b.      Defendants Gilman G. Udell, Donald Bracci, & John King

        At the time period relevant to this case, defendant Gilman G. Udell Jr., a Commander of

the Hazardous Incident Response Division of the Capitol Police, see Fed. Defs.’ Mem., Ex. 2

(Udell Decl.), authorized two bomb technicians, defendants John King and Donald Bracci, to

enter the plaintiff’s van without a warrant, see id., Ex. 2, (King Decl.); id., Ex. 2, (Bracci Decl.).

In addressing the constitutionality of the defendants’ actions, the Court begins its analysis “with

the basic rule that ‘searches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few

specifically established and well-delineated exceptions.’” Arizona v. Gant, __ U.S. __, __, 129

S. Ct. 1710, 1716 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Two of the

exceptions that the federal defendants rely upon are the “exigent circumstances” exception,

which allows police to conduct a search where immediate action is required to protect life, avoid

serious injury, or prevent significant damage to property, e.g., Mincey v. Arizona, 437 U.S. 385,

392 (1978); Warden v. Hayden, 387 U.S. 294, 298-99 (1967); Wayne v. U.S., 318 F.2d 205, 212

(D.C. Cir. 1963), and the “automobile exception,” which authorizes police to conduct a search

“‘[i]f a car is readily mobile and probable cause exists to believe it contains contraband,’”

Maryland v. Dyson, 527 U.S. 465, 467 (1999) (quoting Pennsylvania v. Labron, 518 U.S. 938,

940 (1996)). As the Court discusses below, both of these exceptions justified the warrantless

search of the plaintiff’s vehicle.




                                                  41
         As to the “exigent circumstances” exception, the test for the presence of such

circumstances is “whether the police had ‘an urgent need’ or ‘an immediate major crisis in the

performance of duty affording neither time nor opportunity to apply to a magistrate.’” United

States v. Johnson, 802 F.2d 1459, 1461 (D.C. Cir. 1986) (quoting Dorman v. United States, 435

F.2d 385, 391 (D.C. Cir. 1970) (en banc)). This is an objective standard, focusing on “what a

reasonable, experienced police officer would believe,” and this assessment is made according to

the totality of the circumstances. United States v. Goree, 365 F.3d 1086, 1090 (D.C. Cir. 2004)

(citation omitted). And, the government must have had probable cause for their actions to rely

on the exigent circumstances exception. United States v. Halliman, 923 F.2d 873, 878 (D.C. Cir.

1991).

         Here, looking at the totality of the circumstances, the Court concludes that there was an

urgent need to search the plaintiff’s van and that there was probable cause to do so. Especially

persuasive in this regard are the unmarked containers of liquid observed inside the van, which

could have given the impression that there were explosives or other dangerous chemicals inside.

From their vantage points when they looked into the van, the officers could not see the bottom of

the glass jars, and thus could not tell whether wires or other devices might be connected to them.

Fed. Defs.’ Mem., Ex. 2 (King Decl.); see also United States v. Duran, 884 F. Supp. 552, 556

(D.D.C. 1995) (quoting United States v. Lindsey, 877 F.2d 777, 781 (9th Cir. 1989)) (“‘Exigent

circumstances are frequently found when dangerous explosives are involved.’”). Compounding

the officers’ concerns was the fact that the search took place in the aftermath of the events of

September 11, 2001 (when the Capitol Building was believed to also have been targeted by

terrorists on September 11, 2011, see e.g., Giles Tremlett, Al-Qaida Leaders Say Nuclear Power

Stations Were Original Targets, The Guardian, Sept. 9, 2002, available at




                                                 42
http://www.guardian.co.uk/world/2002/sep/09/september11.afghanistan (referencing interview

with two alleged al-Qaida leaders in which they “revealed . . . that the target of the fourth

hijacked airliner had been the Capitol in Washington”)), and the anthrax mailings to the Capitol

Building, making it a known target for terrorists, and the plaintiff ‘s arrest while wearing an

outlandish costume that the officers thought resembled a suicide bomber’s vest.27 The officers

also had reason to be suspicious about the vehicle because neighbors and restaurant employees

had reported that several individuals occupied the van over several days, even though the van

had been parked in the same location during that time period.28 And, the fact that the street was

closed to pedestrian and vehicular traffic, that neighbors were told to take cover in the back of

their houses, and that Bracci and King put on protective equipment before entering the van all

speak to the danger that the officers reasonably assumed had existed and the need for them to

take immediate action. See Duran, 884 F. Supp. at 556 (holding that procedures conducted by

officers on a vehicle hours after the owner of the vehicle fired gunshots near the White House

was justified under the exigent circumstances exception to the warrant requirement). When law

enforcement personnel are “confronted with evidence which would lead a prudent and

reasonable official to see a need to act to protect life or property, they are authorized to act on

that information, even if ultimately found erroneous.” Wayne v. United States, 318 F.2d 205, 212

(D.C. Cir. 1963). That was the situation confronting the officers here. Accordingly, exigent



27
     A picture of the plaintiff wearing the costume is attached to one of the filings. Fed. Defs.’ Mot., Ex. 4 at 12.
28
   Although it was later discovered that the van was not parked in that same location because the plaintiff had
received a parking citation earlier that same day, see supra p.5 n.6, that fact is of no moment here because the
“constitutionality of an official’s conduct turns not on post hoc judgments about whether the search or seizure was
justified or properly calibrated, but on whether it was reasonable under the tense, uncertain, and rapidly evolving
circumstances that the official confronted.” Higgins v. Penobscot County Sheriff’s Dep’t, 446 F.3d 11, 16 (1st Cir.
2006) (citing Saucier, 533 U.S. at 204-05).




                                                            43
circumstances justified the initial search of the plaintiff’s van, and defendants Udell, Bracci, and

King are entitled to qualified immunity for their actions in so doing.29

         The “automobile exception” also provided the officers justification to conduct a

warrantless search of the van. Under this exception, the police may conduct a warrantless search

of a car if it is “‘readily mobile, and probable cause exists to believe it contains contraband.’”

Dyson, 527 U.S. at 467 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). As stated

above, the facts known to the officers at the time of the initial search support a finding of

probable cause. Moreover, while the car was not “immediately mobile” because the plaintiff and

Patel were in custody at the time of the search, and the plaintiff turned over the keys to his

vehicle while in custody, the applicability of the exception nonetheless applies because “the

inherent mobility of the [van], combined with the lesser expectation of privacy in an automobile

as compared to a home or office, justify application of the exception even if the police have

control over the automobile at the time of the warrantless search.” United States v. Young, 371

Fed. Appx. 358, 361 (4th Cir. 2010) (citing United States v. Kelly, 592 F.3d 586, 590-91 (4th

Cir. 2010)); see also California v. Carney, 471 U.S. 386, 391 (1985) (“Even in cases where an

automobile [is] not immediately mobile, the lesser expectation of privacy resulting from its use

as a readily mobile vehicle justifie[s] application of the vehicular exception.”). Thus, the Court

finds that the “automobile exception” provides further support for its conclusion that defendants

Udell, Bracci, and King are immune from suit regarding the initial vehicle search.




29
   As discussed infra concerning the FBI defendants who carried out the inventory search, defendants Bracci and
King would also be entitled to qualified immunity in regards to their entering the van, having done so on the orders
of defendant Udell.



                                                         44
       3.      The Impoundment of the Van

               a.         Defendants Douglas Edmonson & Kevin Finnerty

       In March 2003, defendant Douglas Edmonson was a bomb technician for the FBI and

was present during the initial search of the plaintiff’s van, Fed. Defs.’ Mem., Ex. 3 (Edmonson

Decl.) ¶ 1, and defendant Kevin Finnerty was a member of the FBI’s Joint Terrorism Task

Force/National Capitol Response Squad and stationed in the Washington Field office of the FBI,

id., Ex. 4 (Finnerty Decl.) ¶ 1. After King and Bracci completed their search of the van,

Edmonson and Finnerty discussed the situation and on advice from an official of the FBI, made

the decision to impound the van. Id., Ex. 3 (Edmonson Decl.) ¶ 3; id., Finnerty Decl. ¶ 6. The

Court addresses their respective situations in turn.

       The federal defendants advance two arguments as to why the impoundment of the van

was reasonable. First, they argue that because the plaintiff may have been attempting to probe

the level and effectiveness of the security at the Capitol Building, there was probable cause to

believe that the van contained evidence related to the plaintiff’s actions or intentions, or the

actions or intentions of third parties. Fed. Defs.’ Mot. at 24-25. Second, the federal defendants

contend that the decision to impound the van was permissible under the “community caretaking”

exception to the warrant requirement. Id. at 25 (citing South Dakota v. Opperman, 428 U.S. 364,

368-69 (1976)). In response, the plaintiff contends that the federal defendants lacked probable

cause to seize his van, and further asserts that they did so only to obtain evidence to “justify their

arrest and seizure of his person.” Pl.’s Opp’n to Fed. Defs.’ Mot. at 25-26. Furthermore, the

plaintiff argues that even if the community caretaking exception applied, the impoundment

should have been carried out by the Capitol Police or the Metropolitan Police Department and

not the FBI. Id. at 26.




                                                 45
       The decision to impound a vehicle is a seizure subject to the Fourth Amendment, and

must be analyzed distinctly from a concomitant inventory search. United States v. Proctor, 489

F.3d 1348, 1352 (D.C. Cir. 2007). An impoundment of a car without a warrant is “‘per se

unreasonable under the Fourth Amendment—subject to only several specifically established and

well delineated exceptions.’” Id. (citing Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)).

One exception recognizes that “[i]n the interests of public safety and as part of what the

[Supreme] Court has called ‘community caretaking functions,’ automobiles are frequently taken

into police custody. Opperman, 428 U.S. at 368 (citing Cady v. Dombrowski, 413 U.S. 433, 441

(1973)). “The community caretaking exception recognizes that the police perform a multitude of

community functions apart from investigating crime. . . . [ and it] encompasses law

enforcement’s authority to remove vehicles that impede traffic or threaten public safety and

convenience.” United States v. Coccia, 446 F.3d 233, 238 (1st Cir. 2006) (citing Opperman, 428

U.S. at 368-69). In this circuit, a community caretaking impoundment “must be based on (1) a

reasonable standard police procedure governing decisions on whether to impound vehicles and

(2) the police must follow the procedure in the case involved.” United States v. Smith, 522 F.3d

305, 314 (3rd Cir. 2008) (interpreting the District of Columbia Circuit holding in Proctor).

       As a starting point, the Court finds that the impoundment of the van in this case was

reasonable under the circumstances. When that decision was made, both the plaintiff and Ms.

Patel were in custody and were likely to be detained for an indefinite period of time. Indeed, the

plaintiff was later indicted for making a false bomb threat, a charge that carries up to a ten-year

term in prison. See 18 U.S.C. § 844(e). Consequently, there was nobody available to take

possession or look after the van, thus increasing the chances it would be towed or vandalized.

Fed. Defs.’ Mem., Ex. 3 (Edmonson Decl.) ¶ 3; id., Ex. 4 (Finnerty Decl.) ¶ 6. In fact, the van’s




                                                 46
out-of-state registration and parking ticket received earlier that day for parking in a restricted

area, Pl.’s Opp’n to Fed. Defs.’ Mot., Ex. B and C, would have reasonably caused the officers to

assume that it would accumulate additional parking tickets or even be towed in the event the

plaintiff and Ms. Patel were confined for an extended period of time. “Case law supports the

view that where a driver is arrested and there is no one immediately on hand to take possession,

the officials have a legitimate non-investigatory reason for impounding the car.” Vega-

Encarnacion v. United States, 344 F.3d 37, 41 (1st Cir. 2003); United States v. Brown, 787 F.2d

929, 932 (4th Cir. 1986) (finding impoundment reasonable in part because no known individual

was immediately available to take custody of the car); United States v. Goodrich, 183 F. Supp.

2d 135, 141 (D. Mass. 2001) (“[W]hether an appropriate person is available to move the car is

central to an evaluation of the reasonableness of any decision to seize a vehicle.”).

       Even if the impoundment was unlawful because it was not made pursuant to standard

police procedure, that requirement was not clearly established in this jurisdiction in March of

2003 and thus it would not have been clear to a reasonable officer that the decision to impound

the van was unlawful. In Proctor, decided in 2007, the District of Columbia Circuit discussed

vehicle impoundments in detail and, relying on Colorado v. Bertine, 479 U.S. 367 (1987),

concluded that decisions to impound vehicles should be governed by a reasonable standard

police procedure. See 489 F.3d at 1352-54. Importantly, the circuit court acknowledged that its

pre-Bertine precedent held that decisions to impound should be reasonable, see id. at 1354 n.3

(citing United States v. Reese, 561 F.2d 894, 903 n.17 (D.C. Cir. 1977)), and added that “[i]t

appears that we have not addressed the issue again until now.” Id. The District of Columbia

Circuit also made clear that it disagreed with the First Circuit, which has held that “an




                                                  47
impoundment is reasonable so long as it ‘serves the government’s ‘community caretaking’

interest.’” Id. at 1354.

       In any event, because the decision to impound the van was reasonable, and because it

would not have been clear to a reasonable officer that impounding the van would be unlawful in

these circumstances, defendants Edmonson and Finnerty are entitled to qualified immunity for

their decision to impound the van.

       4.      The Inventory Search of the Van

               a.      Defendant Kevin Finnerty

       In addition to being involved in the decision to impound the van, defendant Finnerty

made the decision to conduct the inventory search of the van. Fed. Defs.’ Mem., Ex. 4 (Finnerty

Decl.) ¶ 6. The Court analyzes the inventory search separately from the impoundment. Proctor,

489 F.3d at 1353.

       The Second Circuit Court has offered the following overview of inventory searches:

       It is well recognized in Supreme Court precedent that, when law
       enforcement officials take a vehicle into custody, they may search the
       vehicle and make an inventory of its contents without need for a search
       warrant and without regard to whether there is probable cause to suspect
       that the vehicle contains contraband or evidence of criminal conduct.

United States v. Lopez, 547 F.3d 364, 369 (2d Cir. 2008) (citing Illinois v. Lafayette, 462 U.S.

640, 643 (1983)). “A proper inventory search is merely ‘an incidental administrative step

following arrest and preceding incarceration,’” United States v. Banks, 482 F.3d 733, 739 (4th

Cir. 2007) (quoting Lafayette, 462 U.S. at 644)), and is not performed “to detect crime or serve

criminal prosecutions . . . [but] (1) to serve to protect an owner’s property while it is in police

custody; (2) to protect the police against spurious claims of lost or stolen property; and (3) to

protect the police from potential danger,” Lopez, 547 F.3d at 369 (citing Opperman, 428 U.S. at




                                                  48
369). A condition precedent to an inventory search is lawful possession of the vehicle. United

States v. Holly, 219 F. Supp. 2d 117, 129 (D.D.C. 2002).

       Moreover, an inventory search must “‘be conducted according to standardized criteria,’”

Proctor, 489 F.3d at 1355 (quoting Bertine, 479 U.S. at 374), to prevent it from becoming “a ruse

for a general rummaging in order to discover incriminating evidence,” Florida v. Wells, 495 U.S.

1, 4 (1990). Thus, “[t]he Fourth Amendment requires . . . that an inventory search be reasonable

and, if a standard procedure for conducting the inventory search is in effect, it must be

followed.” Proctor, 489 F.3d at 1355; see also United States v. Matthews, 591 F.3d 230, 235

(4th Cir. 2009) (“For the inventory search exception to apply, the search must have been

conducted according to standardized criteria . . . and performed in good faith.”) (internal citations

and alteration omitted); United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir. 2005) (“The

central question in evaluating the propriety of an inventory search is whether, in the totality of

the circumstances, the search was reasonable.”).

       Here, the Court concludes that Agent Finnerty’s decision to order the inventory search

was reasonable. At that point, because the officers were in possession of the keys to the van, and

because there was no one available to take custody of the van, the FBI could have reasonably

believed that they had lawful possession of the van. See Vega-Encarnacion, 344 F.3d at 41;

Brown, 787 F.3d at 932; Goodrich, 183 F. Supp. 2d at 140-41. Moreover, in light of the concern

that the van may have contained evidence concerning the plaintiff and Patel’s actions in probing

the level and effectiveness of security at the Capitol Building, or evidence related to a bomb

hoax in the Capitol Building, it was reasonable to conclude that the FBI would ultimately have

authority to take possession of the van. See Duran, 884 F. Supp. at 554 (noting how the vehicle




                                                 49
was towed to an FBI facility following gunfire incident involving vehicle’s owner near the White

House).

       Once the decision to impound the van was made, the next logical step would be to order

an inventory search of the vehicle. E.g., Banks, 482 F.3d at 739 (explaining that a proper

inventory search is merely an incidental administrative step following arrest and preceding

incarceration). Indeed, Agent Finnerty represents that he made the decision to inventory the van

pursuant to FBI policy, Fed. Defs.’ Mem., Ex. 4 (Finnerty Decl.) ¶ 6, which provides that

“[u]pon seizing personal property, a prompt thorough search of the contents of the property,

whether locked or unlocked, including any containers located therein whether locked or

unlocked, should be conducted and an FD-302 prepared showing the results of the inventory,”

Fed. Defs.’ Mot., Ex 3., at 52 (Section 5-8.1 of the Legal Handbook for Special Agents).

Accordingly, once the decision to impound the van was made, it was a logical and reasonable

consequence that an inventory search be conducted. Agent Finnerty is therefore also entitled to

qualified immunity concerning the inventory conducted of the van.

               b.      The Remaining FBI Agents

       The plaintiff alleges that FBI defendants “Cejpeck, Chinchilla, Collins-Morton, Rankin,

Sidener, [and] Udell . . . violated [his] Fourth Amendment rights by searching his van.” Am.

Compl. ¶ 97. The plaintiff also claims that “FBI Defendants Arseni, Edmonson, Garten, and

Godbold also violated [the plaintiff’s] Fourth Amendment rights by directing, supervising,

participating in, and/or otherwise assisting with the search of the van.” Id.

       Similar to the Capitol Police officers who had no personal involvement in the search of

the van, see supra p.39-40, four FBI defendants declared under oath that they did not participate




                                                 50
in the inventory search of the van either.30 The plaintiff has not proffered any evidence to the

contrary, and, therefore, these four agents are entitled to summary judgment.

         In addition, the remaining FBI defendants represent that they carried out the inventory

search pursuant to FBI policy or upon the instructions from Agent Finnerty.31 These defendants

are entitled to qualified immunity because it would not have been clear to a reasonable officer in

these circumstances that executing the inventory search was unlawful. As noted earlier, the FBI

Legal Handbook for Special Agents sets forth standardized procedures for conducting inventory

searches. Fed. Defs.’ Mot., Ex. C at 51-54 (sections 5-8, 5-8.1, and 5-8.2). In addition, the

instructions from Agent Finnerty provided these defendants an objectively reasonable basis to

believe that the inventory search was lawful. And in fact, the inventory search was not illegal.

In any event, “[p]lausible instructions from a superior or fellow officer support qualified

immunity where, viewed objectively in light of the surrounding circumstances, they could lead a

reasonable officer to conclude that the necessary legal justification for his actions exists . . . .”

Bilida v. McCleod, 211 F.3d 166, 174-175 (1st Cir. 2000); Lauro v. Charles, 219 F.3d 202, 216

n.10 (2nd Cir. 2000) (“[T]he existence of qualified immunity is further supported by the fact that

[the defendant] was apparently following orders given by his superiors when he took [the

plaintiff] on the perp walk.”). Accordingly, the FBI agents who conducted the inventory search

are entitled to qualified immunity.




30
  This group includes the following FBI defendants: (1) Giulio J. Arseni; (2) John Gardner Jr.; (3) Chris Ginsburg;
and (4) Gerhard S. Vienna. See Fed. Defs.’ Mot., Ex. 3 at 1-2, 18-19, 54-55; id., Ex. 5 at 1-2.
31
  This group includes the following agents: (1) Jennifer Cepjeck; (2) Sandra I. Chinchilla; (3) Paul Garten; (4)
Melissa R. Godbold; (5) Ronald E. Menold II; (6) Michelle Rankin; and (7) Kara D. Sidener. See Fed. Defs.’ Mot.,
Ex. 3 at 3-10, 20-21, 23-24, 31-32, 39-40. Defendant Mary Collins Morton appears to belong in this group as well,
because despite not submitting a declaration, she is listed in the FBI report associated with the inventory search as
one of the participants. E.g., id. Ex. 3 at 41.



                                                         51
                                                 CONCLUSION

         For the foregoing reasons, the Court dismisses five of the six Counts against the United

States, but concludes that the plaintiff has adequately stated a claim for false imprisonment

arising out of the stopping of his van in January of 2004. The Court also denies the District of

Columbia’s motion to dismiss, and denies its motion for summary judgment without prejudice

pending further discovery being provided to the plaintiff. Finally, summary judgment is awarded

to the thirty-seven individual Federal Defendants on the plaintiff’s Bivens claims.

         SO ORDERED this 4th day of February, 2011.32

                                                                                   /s/
                                                                          REGGIE B. WALTON
                                                                          United States District Judge




32
  An order will be issued contemporaneously with this memorandum opinion (1) granting the federal defendants’
motion to dismiss Counts One, Three, Four, and Five of the United States Complaint for lack of subject-matter
jurisdiction, (2) granting in part the federal defendants’ motion to dismiss Count Six of the United States Complaint
for lack of subject-matter jurisdiction, (3) granting in part the federal defendants’ motion to dismiss Count Six of the
United States Complaint for failure to state a claim upon which relief can be granted, (4) denying the federal
defendants’ motion to dismiss Count Two, (5) denying the District of Columbia’s motion to dismiss the Second
Amended Complaint; (6) denying the District of Columbia’s motion for summary judgment without prejudice; (7)
granting the federal defendants’ motion for summary judgment regarding the Bivens claims, and (8) directing the
parties to appear before the Court for a status conference at 2:00 p.m. on February 28, 2011, for the purpose of
setting forth a schedule for discovery related to the plaintiff’s false imprisonment claim.



                                                          52
