                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_______________________________
                                )
FRANK DAVID MORELLO,            )
                                )
               Plaintiff,       )
                                )
     v.                         ) Civil Action No. 14-82 (EGS)
                                )
DISTRICT OF COLUMBIA,           )
                                )
               Defendant.       )
_______________________________)

                          MEMORANDUM OPINION

     Frank David Morello brings this action against the District of

Columbia (“the District”) under 42 U.S.C. § 1983, alleging a

violation of rights protected under the United States

Constitution, specifically, the equal protection and due process

guarantees of the Fifth Amendment. Mr. Morello claims that his

constitutionally protected rights were violated when he was

denied the photographic identification described in the Law

Enforcement Officers Safety Act of 2004, 18 U.S.C. § 926C

(“LEOSA”).    Pending before the Court is the defendant’s motion

to dismiss plaintiff’s complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Upon

consideration of the motion, the response and reply thereto, the

applicable law, and the entire record, the Court GRANTS

defendant’s motion.

I.     Background
  Mr. Morello is a former police officer with the Metropolitan

Police Department (“MPD”). See Compl., ECF No. 1 ¶ 1. Mr.

Morello began his career with the MPD on February 20, 1990 and

on December 21, 2001, after more than ten years of service as a

police officer, submitted his resignation paperwork to pursue

other career opportunities.    See id. ¶¶ 10, 11.

  On September 19, 2013, Mr. Morello, pursuant to LEOSA,

submitted an application to the MPD for a photographic

identification. Id. at ¶ 16.    Under LEOSA, a “qualified retired

law enforcement officer” who possesses “photographic

identification issued by the agency from which the individual

separated from service as a law enforcement officer” “may carry

a concealed firearm that has been shipped or transported in

interstate or foreign commerce.” 18 U.S.C. § 926C.     On November

15, 2013, Mr. Morello was informed, by Sergeant Colin Hall of

the MPD Gun Control Unit, that his application for the

photographic identification was rejected because his separation

from the MPD was not “in good standing.” See Compl., ECF No. 1 ¶

19. Mr. Morello was also informed that, should he have any

questions about the MPD’s decision, he can contact Sergeant Hall

directly.   Id. at Ex. F.

  On January 21, 2014, Mr. Morello filed this lawsuit against

the District. Compl., ECF No. 1. He alleged violations of his

Fifth Amendment rights. Id.    On April 7, 2014, the District

moved to dismiss Mr. Morello’s claims.    See Mot., ECF No. 6.

                                  2
Mr. Morello filed his opposition brief on May 8, 2014. See Opp.,

ECF No. 8. The District filed its reply on May 19, 2014. See

Reply, ECF No. 9.   The District’s motion to dismiss is now ripe

for determination by the Court.

II.   Standard of Review

  A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted). While detailed factual

allegations are not necessary, plaintiff must plead enough facts

to “raise a right to relief above the speculative level.” Id.

  When ruling on a Rule 12(b)(6) motion, the Court may consider

“the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court

must not accept plaintiff’s inferences that are “unsupported by

                                  3
the facts set out in the complaint.” Id. “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Most

important for this case, the Supreme Court instructs that a

pleading must offer more than “labels and conclusions” or a

“formulaic recitation of the elements of a cause of action.”

Id. at 678. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Id.

III. Analysis

  “[A] municipality can be found liable under [Section] 1983

only where the municipality itself causes the constitutional

violation at issue.” City of Canton, Ohio v. Harris, 489 U.S.

378, 385 (1989) (citing Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 694 (1978) (emphasis in

original)). The District, as a municipality, see D.C.Code § 1–

102, is subject to liability under § 1983 only “when an official

policy or custom causes the [plaintiff] to suffer a deprivation

of [a] constitutional right,” Carter v. District of Columbia,

795 F.2d 116, 122 (D.C. Cir. 1986), and that policy or custom

must itself be the moving force behind the alleged

constitutional violation. Id. (citing Monell, 436 U.S. at 694);

see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)

(“[M]unicipal liability under § 1983 attaches where—and only

where—a deliberate choice to follow a course of action is made

                                4
from among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question.”); Oklahoma City v. Tuttle, 471 U.S.

808, 817 (1985) (requiring a plaintiff to show a course

deliberately pursued by the city establishing an affirmative

link between the city’s policy and the alleged constitutional

violation).

  In Baker v. District of Columbia, 326 F.3d 1302 (D.C. Cir.

2003), the Court of Appeals explained that a district court

assessing a § 1983 complaint must ask two questions. First, the

Court asks whether the complaint states a claim for a predicate

constitutional violation. To satisfy that prong of the analysis,

all that need be established is some constitutional harm

suffered by the plaintiff; it is not necessary that the

municipality’s policy makers be implicated. Id. at 1306. In this

case, it is unclear whether the MPD’s rejection of Mr. Morello’s

application for a photographic identification could be deemed to

be a constitutional violation.   But even assuming, without

deciding, that the MPD’s rejection of Mr. Morello’s application

violated his constitutional rights in some way, Mr. Morello has

failed to allege sufficient facts to establish the critical

second prong of the municipal liability analysis — causation.

  The second question to be answered when assessing the

sufficiency of a § 1983 claim is: does the complaint state a

“claim that a custom or policy of the municipality caused the

                                 5
violation”? Id. The law is clear that the Court must determine

whether a plaintiff has alleged this “affirmative link” between

the policy and the injury; the municipal policy must be alleged

to be the “moving force” behind the violation. Id.

    There is no heightened pleading standard in a case alleging

municipal liability for a civil rights violation. See Leatherman

v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit,

507 U.S. 163, 164 (1993). “Nevertheless, [a] [c]omplaint must

‘include some factual basis for the allegation of a municipal

policy or custom.’” Hinson ex rel. N.H. v. Merritt Educ. Ctr.,

521 F. Supp. 2d 22, 29 (D.D.C. 2007) (quoting Atchinson v.

District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996)); Hodges

v. Government of District of Columbia, 975 F. Supp. 2d 33, 54

(D.D.C. 2013) (finding that sufficiency of plaintiff’s

allegations of liability under Monell “must be assessed under

the standard set by the Supreme Court in Twombly and Iqbal ”).

    Regardless of the circumstances under which Mr. Morello’s

application was rejected by the MPD, the complaint sets forth no

factual allegations regarding the existence and enforcement of a

municipal policy, custom or practice that directly caused a

violation of his Fifth Amendment rights to equal protection and

due process.1 This pleading defect is fatal.2


1
  Mr. Morello, in his complaint, alleges that “[MPD] has
established procedures for establishing eligibility and the
issuance of photographic identification for all qualified former
Metropolitan Police Officers in furtherance of [LEOSA].” Compl.,
                                 6
IV.   Conclusion

  For the foregoing reasons, the Court hereby GRANTS the

District’s motion to dismiss. An appropriate Order accompanies

this Memorandum Opinion.

  SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           November 7, 2014




ECF No. 1 ¶ 24. The complaint, however, makes no further
mention of those established procedures, nor does the complaint
assert any facts affirmatively linking those established
procedures to the denial of Mr. Morello’s application for LEOSA
identification.
2
  Mr. Morello’s contention that the “absence of any due process
mechanism” related to LEOSA permitting constitutes “inaction”
implicating Monell liability fails because inaction gives rise
to municipal liability under § 1983 only when it can be said
that the government’s failure to act amounted to “deliberate
indifference” towards the plaintiff’s constitutional rights.
See Huthnance v. District of Columbia, 793 F. Supp. 2d 183, 197-
98 (D.D.C. 2011). Notably, there is absolutely nothing alleged
in the complaint suggesting that the District or any of its
officials knew or should have known that the system in place was
constitutionally defunct in the manner Mr. Morello now claims.
See Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011)
(deliberate indifference is a “stringent standard of fault”
requiring either actual or constructive notice). Finally, the
Court is not persuaded by Mr. Morello’s frivolous argument that
a statement made by an Assistant Attorney General in an
unrelated case is somehow an admission by the District of a
policy and is the “moving force” behind the denial of his LEOSA
identification. In any event, “[i]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a
motion to dismiss.” See Arbitraje Casa de Cambio, S.A. de C.V.
v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003).
                                 7
