                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
JAMES LEE GLOVER,                   )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 13-1988 (ABJ)
                                    )
DISTRICT OF COLUMBIA, et al.,       )
                                    )
                  Defendants.       )
____________________________________)


                                  MEMORANDUM OPINION

       Plaintiff James Lee Glover brings this action against defendants the District of Columbia

(“the District”) and two Metropolitan Police Department (“MPD”) officers, Christopher K. Eckert

and Matthew Nickerson, alleging claims under 42 U.S.C. § 1983, the Fourth and Fifth

Amendments, and District of Columbia common law. Am. Compl. [Dkt. # 12]. Defendants have

moved to dismiss and for summary judgment. Defs.’ Mot. to Dismiss & for Summ. J. [Dkt. # 13]

(“Defs.’ Mot.”); Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. [Dkt. # 13-1] (“Defs.’ Mem.”).

With respect to the counts of the amended complaint that arise under federal law, Counts I and III,

the Court finds that plaintiff has failed to state a claim upon which relief can be granted as to the

District, and that defendants Eckert and Nickerson are entitled to judgment as a matter of law.

Therefore, the Court will grant defendants’ motion as to Counts I and III. Furthermore, the Court

will decline to exercise jurisdiction over the remaining counts of the complaint, which arise under

District of Columbia common law, and so Counts II, IV, and V will be dismissed without prejudice.
                                          BACKGROUND

       Plaintiff alleges that on September 25, 2012, as he was walking from his home to a friend’s

home, he was “barraged,” frisked, and questioned by two MPD officers after providing a neighbor

with a cigarette. Am. Compl. ¶¶ 8–13. Feeling “completely baffled” and “extremely humiliated”

by this experience, plaintiff continued on his way to visit his friend. Id. ¶¶ 14–15. Then, as plaintiff

reached the second landing of his friend’s building, plaintiff alleges that an MPD officer

approached him from behind, grabbed his arm, and escorted him out of the building “without

incident, nor any notice.” Id. ¶ 16.

       Plaintiff alleges that he was then searched without his consent, handcuffed, arrested, and

transported to the 6th District Metropolitan Police Station, where $19.00 was taken from him. Id.

¶¶ 17–20. Plaintiff states that he became ill while he was detained because he had missed the

evening doses of his prescribed medications. Id. ¶¶ 21–22. He was transported to a hospital and

was released back into the MPD’s custody the following morning. Id. ¶¶ 22–23. Later that day,

after about eight more hours in detention, plaintiff was informed that the charges against him had

been “no papered.” Id. ¶¶ 23–24. He was released about two hours later, and alleges that the

$19.00 was never returned to him. Id. ¶¶ 23–26.

       Plaintiff filed suit in the Superior Court for the District of Columbia on October 29, 2013.

See Joint Notice of Removal [Dkt. # 1] ¶ 1. The case was removed to this Court on December 16,

2013. Id. ¶ 3. Defendants filed a partial motion to dismiss on December 23, 2013, Defs.’ Partial

Mot. to Dismiss [Dkt. # 2], which plaintiff opposed on January 6, 2014. Pl.’s Opp. to Defs.’ Partial

Mot. to Dismiss & Mot. for Leave to File Am. Compl. [Dkt. # 5].

       The Court granted plaintiff leave to file an amended complaint on March 10, 2014, and

denied defendants’ partial motion to dismiss as moot. Minute Order (Mar. 10, 2014). The



                                                   2
amended complaint alleges five counts against all defendants: false arrest, false imprisonment,

illegal search and seizure, and use of unnecessary or excessive force in violation of the Fourth

Amendment and 42 U.S.C. § 1983 (Count I); common law conversion of the $19.00 (Count II);

deprivation of due process in violation of the Fifth Amendment and 42 U.S.C. § 1983 (Count III);

common law negligence (Count IV); and common law negligent supervision and training (Count

V). Am. Compl. ¶¶ 27–78. For Counts I, IV, and V, plaintiff seeks $2,000,000 in compensatory

damages, and for Counts II and III, he seeks $19.00 in compensatory damages. Am. Compl. ¶¶ 48,

54, 60, 72, 78. In addition, he seeks up to $3,000,000 in punitive damages, 1 as well as interest,

costs, and attorney’s fees. Id.

       Defendants filed a motion to dismiss and for summary judgment on March 27, 2014. Defs.’

Mot. Defendant the District of Columbia moved to dismiss Counts I and III, plaintiff’s federal

claims, arguing, in part, that plaintiff had failed to allege sufficient facts to support a claim for

municipal liability under the applicable Monell standard. 2 Defs.’ Mem. at 2, 7–10. In addition,

defendants Eckert and Nickerson moved for summary judgment on Counts I and III, contending

that they were entitled to qualified immunity and that they were not the officers who actually

arrested plaintiff. Id. at 2, 11–15. All of the defendants further argued that the Court should




1      Specifically, plaintiff states in Count I that he seeks $3,000,000 in punitive damages, and
in Counts III, IV, and V that he seeks $1,000,000 in punitive damages. See Am. Compl.

2       In addition, the District argued that the claims plaintiff brought under the Fifth Amendment
were in fact governed by the Fourth Amendment, and that punitive damages were not available
against the District in a section 1983 case. Defs.’ Mem. at 2, 6–7, 15–16. Although the District
appears to have misapprehended the basis for plaintiff’s Fifth Amendment claim, the Court need
not rule on this issue because it will dispose of these claims on other grounds. In addition, plaintiff
states that he “is not pursuing punitive damages against the District” in his opposition to
defendants’ motion, Pl.’s Opp. to Defs.’ Mot. [Dkt. # 16] ¶ 13, so that issue is moot.
                                                  3
decline to exercise supplemental jurisdiction over plaintiff’s common law claims, but that if it

retained jurisdiction, the claims should be dismissed in any event. Id. at 2, 16–19.

          Plaintiff failed to file an opposition to defendants’ motion by the April 14, 2014, deadline

mandated by Local Civil Rule 7(b), and so the Court ordered plaintiff to show cause why the

motion should not be treated as conceded on or before May 16, 2014. Minute Order (May 7,

2014). Plaintiff responded on May 16, 2014, and his counsel explained that she “did not realize

that Defendants had filed a subsequent Motion to Dismiss and for Summary Judgment after this

Court’s acceptance of Plaintiff’s Amended Complaint.” Pl.’s Resp. to Court’s May 7, 2014 Order

to Show Cause [Dkt. # 14] ¶ 8. The Court gave plaintiff a second chance to oppose defendants’

motion, setting a deadline of June 6, 2014. Minute Order (May 19, 2014).

          On June 6, 2014, plaintiff filed an opposition to defendants’ motion. Pl.’s Opp. to Defs.’

Mot. [Dkt. # 15]. This filing, however, appeared to include an incomplete draft of plaintiff’s

“memorandum of points and authorities” in support of his opposition. See Mem. of P. & A. in

Supp. of Pl.’s 1st Opp. [Dkt. # 15] (“Pl.’s 1st Mem.”). Specifically, the “Statement of the Case”

section contained only one unfinished sentence – “Pursuant to Plaintiff’s Amended Complaint,” –

and the “Argument” and “Conclusion” sections contained no text whatsoever. See Pl.’s 1st Mem.

at 6–7.     Noting these deficiencies, the Court issued a minute order stating that “[i]f there was

another document that the plaintiff meant to file instead, counsel must correct the docket by June

12, 2014,” Minute Order (June 11, 2014), providing plaintiff with a third chance to oppose

defendants’ motion. But on June 12, 2014, plaintiff’s counsel resubmitted the same, incomplete

pleading. See Pl.’s Opp. to Defs.’ Mot. [Dkt. # 16] (“Pl.’s 2d Opp.”); Pl.’s Mem. of P. & A. in

Supp. of Pl.’s 2d Opp. [Dkt. # 16] (“Pl.’s 2d Mem.”). Defendants filed a reply to plaintiff’s

opposition on June 15, 2014. Defs.’ Reply to Pl.’s Opp. [Dkt. # 17].



                                                   4
                                    STANDARD OF REVIEW

I.      Motion to Dismiss

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

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

556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,

the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions.” 556 U.S. at 678. And “[s]econd, only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 679.

        A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “‘labels

and conclusions’” or a “‘formulaic recitation of the elements of a cause of action,’” id., quoting

Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the

plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court

accept plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily



                                                   5
consider only “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) (citations omitted).

II.     Motion for Summary Judgment

        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). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must “designate specific facts showing that there is a genuine issue

for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is

insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving

party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248;

Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the

court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party

opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations

omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). But if the

nonmoving party “fail[s] to make a sufficient showing on an essential element of her case with

respect to which she has the burden of proof,” then the moving party is entitled to judgment as a

matter of law. Celotex, 477 U.S. at 323.



                                                   6
                                            ANALYSIS

       At the outset, the Court notes that plaintiff – who is represented by counsel – has failed to

respond to any of the arguments advanced by defendants in their motion. See Pl.’s 2d. Opp.; Pl.’s

2d Mem. Notwithstanding this failure, the Court has considered all of the materials submitted by

the parties in the light most favorable to plaintiff, see Kowal, 16 F.3d at 1276; Scott, 550 U.S. at

378, and it finds that defendants’ motion should be granted. Accordingly, the Court will dismiss

Counts I and III against the District, it will grant summary judgment to defendants Eckert and

Nickerson on Counts I and III, and it will decline to exercise supplemental jurisdiction over Counts

II, IV, and V, which will be dismissed without prejudice.

I.     The Court will dismiss Counts I and III against the District.

       Counts I and III of the amended complaint seek to hold the District liable under 42 U.S.C.

§ 1983 for violations of the Fourth and Fifth Amendments. Section 1983 of the Civil Rights Act

provides:

       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the jurisdiction
       thereof to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at law, suit in
       equity, or other proper proceeding for redress, except that in any action brought
       against a judicial officer for an act or omission taken in such officer’s judicial
       capacity, injunctive relief shall not be granted unless a declaratory decree was
       violated or declaratory relief was unavailable. For the purposes of this section, any
       Act of Congress applicable exclusively to the District of Columbia shall be
       considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

        In Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), the

Supreme Court held that local governments are not immune from liability under section 1983, but

it specified that “a municipality cannot be held liable solely because it employs a tortfeasor – or,


                                                  7
in other words, a municipality cannot be liable under § 1983 on a respondeat superior theory.” Id.

at 690. “Instead, it is when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible under § 1983.” Id. at 694. The Supreme

Court subsequently explained: “[t]he ‘official policy’ requirement was intended to distinguish acts

of the municipality from acts of employees of the municipality, and thereby make clear that

municipal liability is limited to actions for which the municipality is actually responsible.”

Pembaur v. City of Cincinnati, 475 U.S 469, 479 (1986).

        In assessing whether a plaintiff has established municipal liability under Monell, a court

must first determine whether there has been a constitutional violation. See Baker v. District of

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). Assuming that plaintiff has alleged a deprivation

of his constitutional rights, his complaint must set forth sufficient facts to support the allegation

that the municipality was acting in accordance with an official government policy or custom, and

that the policy caused the claimed constitutional deprivation. See Monell, 436 U.S. at 691, 694;

Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); Jones v. Horne, 634 F.3d 588, 600 (D.C. Cir.

2011). The policy or custom must be “the moving force of the constitutional violation.” Carter

v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986), quoting Monell, 436 U.S. at 694; see

also Tuttle, 471 U.S. at 823 (requiring an affirmative link between the city’s policy and the alleged

constitutional violation).

       Here, the federal claims against the District must be dismissed because plaintiff’s amended

complaint is devoid of any allegation that the officers’ alleged misconduct grew out of a custom

or policy of the MPD or the District. See Monell, 436 U.S. at 691, 694; Jones, 634 F.3d at 600.

Moreover, plaintiff expressly seeks to hold the District accountable for the activities described in



                                                 8
the complaint under the theory that the District is the employer of the MPD officers, and therefore

responsible for their alleged misconduct. See Am. Compl. ¶¶ 5, 42. But a municipality cannot be

held vicariously liable under section 1983. Monell, 436 U.S. at 693; see also City of Canton v.

Harris, 489 U.S. 378, 385 (1989). Thus, with respect to Counts I and III, plaintiff has failed to

state a claim upon which relief can be granted against the District of Columbia.

II.     The Court will grant summary judgment to defendants Eckert and Nickerson on
        Counts I and III.

        Defendants Eckert and Nickerson contend that the Court should grant judgment in their

favor on Counts I and III because they were not the officers who arrested plaintiff, and because,

even if they had been, they would have had probable cause to arrest him. Defs.’ Mem. at 11–15;

see also Decl. of Christopher Eckert, Ex. 1 to Defs.’ Mot. [Dkt. # 13-3] (“Eckert Decl.”) ¶ 9; Decl.

of Matthew Nickerson, Ex. 2 to Defs.’ Mot. [Dkt. # 13-4] (“Nickerson Decl.”) ¶ 9. “The court

shall grant summary judgment” where “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a) (emphasis added). A

court must also “state on the record the reasons for granting or denying the motion.” Id. A

nonmoving party’s complete failure to come forward with evidence to demonstrate the existence

of a genuine issue of material fact constitutes a “reason” for the grant of summary judgment. See

id.; see also Grimes v. District of Columbia, 923 F. Supp. 2d 196, 198 (D.D.C. 2013).

        Rule 56 provides that a nonmoving party “must” support the assertion that a fact is

genuinely disputed by “citing to particular parts of materials in the record” or by “showing that the

materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A)–

(B); see also Grimes, 923 F. Supp. 2d at 198. “If a party fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),” the

court has four options: (1) to give the party “an opportunity to properly . . . address the fact; (2) [to]

                                                    9
consider the fact undisputed for purposes of the motion; (3) [to] grant summary judgment if the

motion and supporting materials – including the facts considered undisputed – show that the

movant is entitled to it; or (4) [to] issue any other appropriate order.” Fed. R. Civ. P. 56(e). In

addition, under Local Civil Rule 7(h) of this Court, “the court may assume that facts identified by

the moving party in its statement of material facts are admitted, unless such a fact is controverted”

by the nonmoving party. LCvR 7(h)(1).

       The Court finds that, whether or not there was probable cause to arrest plaintiff, plaintiff

has failed to show that there is a genuine issue of material fact in dispute as to whether Eckert and

Nickerson were personally involved in his arrest. See Celotex, 477 U.S. at 324. Eckert and

Nickerson aver in their declarations that they did not have “any involvement with [plaintiff’s]

arrest” and that they “did not even see [plaintiff] being apprehended or arrested.” Eckert Decl.

¶ 9; Nickerson Decl. ¶ 9. Although plaintiff had three “opportunit[ies] to properly . . . address”

these facts, see Fed. R. Civ. P. 56(e)(1), he entirely failed to do so. 3 Therefore, the Court now

“consider[s] the [unrebutted] fact[s] undisputed for purposes of [defendants’] motion,” see Fed. R.

Civ. P. 56(e)(2); LCvR 7(h)(1), and it finds that defendants Eckert and Nickerson are entitled to

judgment on Counts I and III of the complaint. See Jones, 634 F.3d at 602 (upholding dismissal

of section 1983 claim where plaintiff had not alleged that the defendant was personally involved

the alleged misconduct); Elkins v. District of Columbia, 636 F. Supp. 2d 29, 35 (D.D.C. 2009)



3      The Court notes that plaintiff’s incomplete opposition pleading contains a Statement of
Material Facts in Genuine Dispute, see [Dkt. # 16], that responds to defendants’ Statement of
Material Facts Not in Genuine Dispute, see [Dkt. # 13-2]. But many of plaintiff’s purported
statements of disputed fact are actually legal conclusions, and plaintiff has not supported any of
his contentions by “citing to particular parts of materials in the record” or by “showing that the
materials cited do not establish the absence . . . of a genuine dispute,” as required by Rule 56. See
Fed. R. Civ. P. 56(c)(1)(A)–(B). In addition, plaintiff’s claim that “Counts I and III against
Defendants Nickerson and Eckert are not barred by the doctrine of qualified immunity,” Pl.’s 2d
Opp. ¶ 12, is a legal conclusion that is not supported by any citation at all.
                                                 10
(granting judgment in favor of a defendant “because Plaintiffs have failed to present more than a

scintilla of evidence demonstrating his personal involvement” in the allegedly unconstitutional

misconduct).

III.   The Court will dismiss Counts II, IV, and V without prejudice.

       The remaining counts of the amended complaint – Counts II, IV, and V – seek to hold

defendants liable for conversion, negligence, and negligent supervision and training under District

of Columbia common law. See Am. Compl. ¶¶ 49–54, 61–78. A federal court may exercise

supplemental jurisdiction over state claims that “form part of the same case or controversy” as

federal claims over which it has original jurisdiction. 28 U.S.C. § 1367(a). But in its discretion,

a court may decline to exercise supplemental jurisdiction when it has dismissed the federal claims

from a case. Id. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated

before trial, the balance of factors to be considered under the pendent jurisdiction doctrine –

judicial economy, convenience, fairness, and comity – will point toward declining to exercise

jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 n.7 (1988); see also Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260,

1266–67 (D.C. Cir. 1995).

       Here, the only claims remaining in this case arise under the common law of the District of

Columbia. Under these circumstances, and in consideration of the relevant factors, the Court

declines to exercise jurisdiction over Counts II, IV, and V of the amended complaint, and will

dismiss those claims without prejudice. See 28 U.S.C. § 1367(c)(3).




                                                11
                                         CONCLUSION

       For the foregoing reasons, the Court will grant defendants’ motion to dismiss and for

summary judgment with respect to Counts I and III of the amended complaint. In addition, the

Court declines to exercise jurisdiction over Counts II, IV, and V, all of which allege claims arising

under District of Columbia law, and it will dismiss those claims without prejudice. A separate

order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: March 16, 2015




                                                 12
