                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


L. OLIVIA BROWN et al.,                     )
                                            )
                   Plaintiffs,              )
                                            )
              v.                            ) Civ. Action No. 10-2217 (ABJ)
                                            )
ERICA FOGLE et al.,                         )
                                            )
               Defendants.                  )
______________________________              )


                                    MEMORANDUM OPINION

       Plaintiff L. Olivia Brown, proceeding pro se, sues on behalf of herself and her four minor

children under 42 U.S.C. § 1983 and under common law for assault and intentional infliction of

emotional distress (“IIED”). She alleges that in March 2010, defendants conducted a warrantless

search of her home in violation of the Fourth Amendment to the United States Constitution and

during the course of the search subjected her and her children to an assault and emotional

distress. Plaintiff names as defendants Director Roque Gerald of the District of Columbia’s

Department of Child and Family Services Agency (“CFSA”) and two CFSA social workers, as

well as Chief Cathy Lanier of the Metropolitan Police Department (“MPD”) and three MPD

officers. See Compl. Caption.

       By Order of October 18, 2011, the court dismissed the complaint against Director Gerald

and Chief Lanier and denied without prejudice the remaining defendants’ motion to dismiss on

the ground of qualified immunity. See Brown v. Fogle, 819 F. Supp. 2d 23 (D.D.C. 2011).

Those defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for

summary judgment on the constitutional claim based on qualified immunity [Dkt. # 17], which

plaintiff has opposed [Dkt. # 19]. Upon consideration of the parties’ submissions and the entire

record, the court will grant defendants’ motion for summary judgment on the Fourth Amendment
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claim. In addition, the court finds from defendants’ unmatched evidence that plaintiff cannot

prove her claims of assault and IIED and, therefore, will enter judgment for defendants on all

claims.

                                         BACKGROUND

          The relevant facts are as follows. Defendants Stephen Haynes, Tyrone Wallace, and

Michael Pulliam are MPD police officers and Defendants Erica Fogle and Lateefa Salaam were

CFSA social workers at the time of the search of plaintiff’s home on March 29, 2010. Defs.’

Statement of Material Facts as to Which There is No Genuine Issue ¶¶ 1-5. On that day, Fogle

and Salaam responded “to an anonymous call reporting possible child endangerment [by]

check[ing] on the safety of [plaintiff’s] children” at her residence in the southeast quadrant of the

District of Columbia.      Mem. of P. & A. in Supp. of Defs’ Mot. for Summ. J. on Pl.’s

Constitutional Claims (“Defs.’ Mem.”), Ex. A-2 (Decl. of Erica Fogle ¶ 4). “Haynes and

Wallace, while on routine neighborhood patrol, stopped to assist [them] on this routine, in-home

child safety assessment at the Brown residence.” Id. ¶ 5; but see Ex. A-1 (Decl. of Stephen

Haynes ¶ 4) and Ex. A-4 (Decl. of Tyrone Wallace ¶ 4) (each stating that he “was summoned

by” Fogle and Salaam to assist); Ex. A-3 (Decl. of Michael Pulliam ¶¶ 3-4) (stating that as a

supervising officer, he “was summoned by Officers Wallace and Haines [sic] to respond to

[plaintiff’s residence] due to the unusual way a call to assist CFSA Defendants [] Fogle and []

Salaam . . . was unfolding”).

          Salaam knocked on the front door of the residence and then with Fogle went “to the rear

entrance of the home to knock on the rear door,” where they encountered plaintiff. Fogle Decl.

¶¶ 6-7. Wallace states that he “was present when Fogle and Salaam knocked on Brown’s front

door[,]” and further states that he “saw Brown running down the alley, and [] asked [her] why is

she running. I then asked the plaintiff if child and family could come into the home and check



                                                     2
on the kids or words to that effect.” Wallace Decl. ¶¶ 5-6. What happened next is in dispute but

only defendants have provided statements under penalty of perjury.

       According to Fogle, she and Salaam told plaintiff why they were there and asked her if

they could enter the home, “check on the kids and discuss the report received at the CFSA

hotline, or words to that effect.” Fogle Decl. ¶ 7. “[Plaintiff] gave us her consent and voluntarily

let Salaam, MPD officers and me into her house.” Id. ¶ 9.

          MPD Officers remained in the front room near the front door, while Salaam
          and I checked on the children’s safety. [Plaintiff] led Salaam and me on a
          tour of the home, answering basic questions and volunteering information to
          us about provisions and care for the children. I asked [plaintiff] where I
          could conduct private interviews with her children as part of routine CFSA
          policy on home visits, and [plaintiff] guided me to the children’s playroom
          and said I could speak to them there. After obtaining prior consent from
          [plaintiff], I conducted routine private interviews with each of the children.

Id. ¶¶ 10-13. The MPD defendants’ declarations corroborate Fogle’s version of the respective

events each had witnessed. See Haynes Decl. ¶¶ 6, 8-9; Wallace Decl. ¶¶ 8-9; Pulliam Decl. ¶ 9.

The MPD defendants deny leaving the front room during the social workers’ visit with plaintiff

and the children, deny threatening plaintiff or using force to enter her home, deny interrogating

plaintiff or her children, and deny searching plaintiff’s home or seizing her property. Fogle

corroborates those defendants’ denials. Fogle Decl. ¶¶ 14-17. In addition, the MPD officers

and Fogle state that they had a good faith belief that their actions “were at all times reasonable,

appropriate and consistent with local and federal law.” Haynes Decl. ¶¶ 9-14; Wallace Decl. ¶¶

9-14; Pulliam Decl. ¶¶ 9-14; Fogle Decl. ¶ 18.

       In an unsworn statement, plaintiff counters (1) that “[a]t no time did [she] consent to this

action [to enter her home],” Pl.’s Opp’n to Defs.’ Mot. for Summ. J. on Pl.’s Constitutional

Claims/Immunity at 2 (“Pl.’s Opp’n”); (2) that “at no time was anyone running [down the

alley]”, id. at 2-3; and (3) that “[t]here were no items seized, however, rooms were entered on

other floors, dresser drawers were opened, beds were examined and refrigerator and cabinets


                                                     3
were opened and contents examined. This constitutes search.” Id. at 4. In addition, plaintiff

states that “[d]efendants kidnapped and interrogated Plaintiffs for a period of about two hours.

At no time was permission given for this incident[,]” and that she was “coerced, while under

duress with the threat of kidnapping to jail.” Id.

                                         DISCUSSION

       1.   Legal Standard

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

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

56(a). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving

party; a fact is only “material” if it is capable of affecting the outcome of the litigation.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also Laningham v. U.S. Navy,

813 F.2d 1236 (D.C. Cir. 1987). In assessing a party's motion, “[a]ll underlying facts and

inferences are analyzed in the light most favorable to the nonmoving party.” N.S. ex rel. Stein v.

District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson, 477 U.S. at 247).

       “To defeat summary judgment, the non-moving party must ‘designate specific facts

showing there is a genuine issue for trial.’” Van Hollen v. Fed. Election Comm’n, No. 11-0766

(ABJ), --- F. Supp. 2d ---, 2012 WL 1066717, at *6 (D.D.C. Mar. 30, 2012) (quoting Celotex

Corp. v.. Catrett, 477 U.S. 317, 324 (1986)). As the court advised plaintiff with regard to

responding to defendants’ summary judgment motion, "any factual assertion in the movant's

affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or

other documentary evidence contradicting the assertion." Order (Dec. 21, 2011) at 1 (quoting

Neal v. Kelly, 963 F. 2d 453, 465 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F. 2d 100,

102 (7th Cir. 1982)). Thus, to defeat defendants’ properly supported summary judgment motion,

plaintiff would need to rebut defendants’ affidavits with evidence, such as other affidavits or



                                                     4
sworn statements; mere statements that the moving party's affidavits are inaccurate or incorrect

are not sufficient. Id. at 2 (citing Neal, 963 F. 2d at 457-58).

       A party opposing summary judgment “may not rest upon the mere allegations or denials

of [the complaint]” but must instead present “significant probative evidence tending to support

the complaint” in order to move the case beyond summary judgment to trial. Anderson, 477 U.S.

at 248-49 (citations and internal quotation marks omitted); see Johnson v. Wash. Metro. Area

Transit Auth’y, 883 F.2d 125, 128 (D.C. Cir. 1989), abrogated on other grounds by Belton v.

Wash. Metro. Area Transit Auth’y, 20 F.3d 1197, 1200 (D.C. Cir. 1994) (“The removal of a

factual question from the jury is most likely when a plaintiff's claim is supported solely by the

plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined

either by other credible evidence, physical impossibility or other persuasive evidence that the

plaintiff has deliberately committed perjury.”) (citations omitted).

       2. Analysis

       A. Qualified Immunity

       The applicable law stated in the court’s earlier ruling, see Brown, 819 F. Supp. 2d at 28-

29, bears repeating. Qualified immunity is “a defense that shields officials from suit if their

conduct ‘d[id] not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’ ” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)

(quoting Ortiz v. Jordan, –– U.S. ––, 131 S.Ct. 884, 888 (2011)) (other citation omitted). An

official enjoys protection from a lawsuit “where [his or her] conduct is objectively reasonable in

light of existing law.” Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998). Conversely,

an official is not shielded where he “could be expected to know that certain conduct would

violate statutory or constitutional rights.” Id.

       Whether an official has qualified immunity is resolved by a two-step inquiry. The

threshold question is whether, "[t]aken in the light most favorable to the party asserting the
                                                       5
injury, . . . the facts alleged show the officer's conduct violated a constitutional right[.]" Saucier

v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). "If no

constitutional right would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity." Id. If the plaintiff's rights were

violated, the court must then assess whether, “in light of the specific context of the case,” the

right in question was “clearly established.” Id. The suggested sequence “should not be regarded

as an inflexible requirement,” Pearson v. Callahan, 555 U.S. 223, 227 (2009), and it is not

mandatory. Id. at 236. “[C]ourts . . . [are] permitted to exercise . . . 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.; see Bame, 637 F.3d at 384 (deciding that “the

principle of constitutional avoidance counsels that we turn directly to the second question”

concerning qualified immunity) (quoting Pearson); Atherton, 567 F.3d at 690 (“the District

Court retains the discretion to decide ‘which of the two prongs of the qualified immunity

analysis should be addressed first . . . .’ ”) (quoting Pearson).

       Defendants had argued that “[g]iven the seriousness of the allegations, the[ir] intrusion

was reasonable . . . .” Brown, 819 F. Supp. 2d at 29 (quoting Defs.’ Mem. at 13), but they had

not “proffered any evidence to support this conclusion.” Id. Defendants have now supplied

declarations and documents to support summary judgment, which plaintiff has not rebutted with

any admissible evidence. Plaintiff does not dispute defendants’ business record showing that

Salaam was assigned “to monitor” plaintiff and her children on July 16, 2009, eight months

before the home visit underlying this action. Defs.’ Ex. A-5 (Salaam Letter of Nov. 13, 2009).

And she admits that defendants were at her home in response to an anonymous complaint raising

concerns about the supervision of her children and that she had left her minor children

unsupervised in May 2009. Brown, 819 F. Supp. 2d at 29-30.



                                                      6
       CFSA policy requires the initiation of an investigation “of accepted reports of alleged

child maltreatment . . . by establishing face-to-face contact with the alleged child victim within

24 hours of the receipt of the report.” Id. at 29 (quoting Defs.’ Mem., Ex. D (Investigations

Policy at 1)). Furthermore, the policy requires that the investigation include “an assessment of

the safety and risk to not only the alleged child victim, but also [to] all children residing in the

home [and] [w]hen necessary services and referrals shall be provided to the family.”             Id.

Plaintiff implicitly admits that defendants followed those procedures while characterizing their

conduct as “kidnapping,” “interrogat[ion],” and a “search.” Pl.’s Opp’n at 4; see Brown, 819 F.

Supp. 2d at 30 (“[P]laintiff asserts that her minor children ‘were kidnapped in the basement . . .

and grilled by the social workers without adult plaintiff’s presence or consent.’”) (citation

omitted). Such “hyperbole . . . [and] [n]aked accusations are no substitute for evidence and

[cannot] defeat summary judgment.” Hall v. Nix, 147 Fed. Appx. 954, 955 (11th Cir. 2005) (per

curiam) (citation omitted).

       When presented with the material facts, namely, (1) that plaintiff had been under CFSA’s

supervision since July 2009; (2) that plaintiff admittedly left her minor children unsupervised in

May 2009; (3) that on the day in question, defendants were responding to an anonymous tip of

possible child endangerment in accordance with CFSA policy; and (4) that upon defendants’

arrival, plaintiff admittedly left the home with her children “through the rear door”, Compl. ¶ 12;

Wallace Decl. ¶ 6, and with defendants’ testimony, no reasonable jury could find that

defendants’ conduct was objectively unreasonable and, thus, in violation of the Fourth

Amendment’s proscription against “unreasonable searches.” 1 U.S. Const. amend. IV. Therefore,




       1
          In her opposition, plaintiff points out “conflicting testimony” about how the MPD
defendants became involved in the incident. See Pl.’s Opp’n, at 2-3. Whether the officers
stopped to provide assistance, as Fogle stated, or were “summoned,” as they stated, is immaterial
to resolving the qualified immunity issue.
                                                    7
the court finds that defendants, having shown that they did not violate plaintiff’s constitutional

right, are entitled to qualified immunity on the § 1983 claim. 2

       B. The Common Law Claims

       Since plaintiff has proffered no probative evidence to contradict defendants’ declarations

describing a scene starkly different from the one she describes in unsworn statements, the court

finds an insufficient factual basis to support plaintiff’s conclusory claims of assault and IIED.

See Compl. ¶¶ 24, 26. It therefore will enter judgment for defendants on plaintiff’s common

claims as well.

                                         CONCLUSION

       For the foregoing reasons, the court concludes from the evidentiary record that

defendants are entitled to qualified immunity on the federal claim and that no reasonable jury

could find for plaintiff on the common law claims. Hence, the court will enter judgment for

defendants on all claims. A separate order accompanies this Memorandum Opinion.



                                                      __________s/___________
                                                      AMY BERMAN JACKSON
                                                      United States District Judge


DATE: May 17, 2012




       2
          Even if a Fourth Amendment violation were found, no reasonable jury could find on the
facts of this case that defendants knew or should have known that they were violating a clearly
established right by following CFSA’s policy on investigating complaints of child endangerment.
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