                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                    )
NATALIA ARGOTE,                     )
                                    )
            Plaintiff,              )
                                    )
      v.                            )   Civil Action No. 15-cv-303 (RMC)
                                    )
DISTRICT OF COLUMBIA                )
METROPOLITAN POLICE                 )
DEPARTMENT, et al.,                 )
                                    )
            Defendants.             )
___________________________________ )

                                 MEMORANDUM OPINION

               Natalia Argote seeks redress for the actions taken by a police officer pursuant to a

traffic stop. Specifically, she alleges that Officer Terrence Richardson searched her cellular

telephone while another officer conducted a field sobriety test. Officer Richardson then

allegedly texted himself a naked image of Ms. Argote found on her phone. Three of the four

defendants have moved to dismiss Ms. Argote’s allegations for various reasons. See Mot. to

Dismiss [Dkt. 4] (Mot.). The motion will be granted in part and denied in part.

                                            I. FACTS

               The facts alleged in the operative complaint must be taken as true in this

procedural posture. Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015).

               Ms. Argote resides in Virginia but was driving in the District of Columbia on

March 3, 2012. At approximately 9:45 p.m., two police officers responded to a car accident.

Ms. Argote was ordered to exit her car and submit to field sobriety tests. Her driver’s license

and mobile phone were taken from her while she submitted to the tests.




                                                 1
                Officer Richardson was the one who took Ms. Argote’s phone. He began

perusing the images on it, until he came to “a naked photo of [Ms. Argote] that she had taken for

her boyfriend.” Am. Compl. [Dkt. 3] ¶ 2. Without Ms. Argote’s knowledge or consent, Officer

Richardson attached a copy of the photo to a text that he sent himself from Ms. Argote’s phone.

                Ms. Argote now sues four defendants: (1) the District of Columbia; (2) the D.C.

Metropolitan Police Department (MPD); (3) MPD Police Chief Cathy Lanier; and (4) Officer

Richardson. The Amended Complaint has five counts, each ostensibly aimed at all four

defendants. Count I alleges a violation of the Fourth Amendment, to wit, an unreasonable search

and seizure of Ms. Argote’s phone. Count II alleges a deprivation of Ms. Argote’s right under

the Fourteenth Amendment to due process. Count III alleges denial of Ms. Argote’s guarantee

under the Fourteenth Amendment to equal protection of law. Count IV alleges common-law

invasion of privacy. Count V alleges common-law conversion/civil theft.

                                     II. LEGAL STANDARD

                A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).

A complaint must be sufficient “to give a 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) (internal

citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff=s

obligation to provide the grounds of his entitlement to relief “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim for relief that is “plausible on its face.” Id. at 570. A court must treat the

complaint=s factual allegations as true, “even if doubtful in fact.” Id. at 555. But a court need

not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
                                                   2
(2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007).

                                            III. ANALYSIS

                  Several of Ms. Argote’s claims fail to state a claim that is plausible on its face,

and another is untimely. Only one will proceed to discovery.

       A. The Metropolitan Police Department and Chief Lanier Will be Dismissed

                  No one can sue a constituent agency of the District of Columbia. See Trifax

Corp. v. District of Columbia, 53 F. Supp. 2d 20 (D.D.C. 1999) (holding that the Department of

Human Services is non sui juris); Ray v District of Columbia, 535 A.2d 868, 869 n. 2 (D.C.

1987) (holding that the Fire Department, the Board of Police and Fire Surgeons, and the Police

and Fire Clinic are not sui juris entities); Roberson v. District of Columbia Board of Higher

Education, 359 A.2d 28, 31 n. 4 (D.C. 1976) (holding that the Board of Higher Education is not

an entity that can be sued); Miller v. Spencer, 330 A.2d 250, 251 n. 1 (D.C. 1974) (holding that

the Department of Sanitation cannot be sued). There is no question that MPD is such an entity,

and thus non sui juris. See Allen-Brown v. District of Columbia, 54 F. Supp. 3d 35, 40 (D.D.C.

2014) (“[I]n light of the fact that . . . defendant MPD cannot be sued, the Court will grant

defendants’ motion to dismiss MPD as a defendant.”). MPD will be dismissed as a defendant

from this case.

                  Chief Lanier is of course not an agency, but is sued in her official capacity as the

Chief of the MPD. An official capacity suit against an individual is the functional equivalent of

a suit against the official’s employer—in this case, the District of Columbia. Jones v.

Ottenberg’s Bakers, Inc., 999 F. Supp. 2d 185, 190 (D.D.C. 2013); Brown v. Corr. Corp. of Am.,

                                                    3
603 F. Supp. 2d 73, 78 (D.D.C. 2009); Hardy v. D.C., 601 F. Supp. 2d 182, 187 (D.D.C. 2009);

Jenkins v. Jackson, 538 F. Supp. 2d 31, 33 (D.D.C. 2008). In such cases, it is “redundant and an

inefficient use of judicial resources” to maintain the official as a defendant. E.g., Ottenberg’s

Bakers, 999 F. Supp. 2d at 190 (quoting Cooke–Seals v. District of Columbia, 973 F.Supp. 184,

187 (D.D.C. 1997)). It would be redundant here because the District is a named defendant.

Chief Lanier will therefore be dismissed from the case.

       B. Ms. Argote’s Fourteenth Amendment Claims Fail

               Counts II and III are expressly premised on the Fourteenth Amendment. That

amendment does not apply to the District or its police force. Bolling v. Sharpe, 347 U.S. 497,

499 (1954); Person v. District of Columbia, 642 F. Supp. 2d 24, 28 (D.D.C. 2009). Plaintiff’s

argument that “Ms. Argote’s claims are lodged under 42 U.S.C. § 1983,” Opp’n at 2, misses the

point.1 Any § 1983 suit alleging the violation of an inapplicable constitutional amendment fails

to state a claim for relief. See Ennis v. Lott, 589 F.Supp.2d 33, 35 n. 2 (D.D.C.2008) (dismissing

the plaintiff's § 1983 claims premised on Fourteenth Amendment violations because “[t]he

Fourteenth Amendment does not apply to the District of Columbia”). Counts II and III will

therefore be dismissed against all defendants.




1
  Ms. Argote alleges that “MPD’s misconduct violated 42 U.S.C. § 1983.” Am. Compl. ¶¶ 42,
51. That somewhat misstates the law. A plaintiff brings suit under § 1983 to redress violations
of other federal law, including the Constitution. In other words, § 1983 provides a right of
action; it is never itself violated. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991)
(“Section 1983 does not create substantive rights; it merely serves as the procedural device for
enforcing substantive provisions of the Constitution and federal statutes.”) (citing Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (“[O]ne cannot go into court and claim a
‘violation of § 1983’—for § 1983 by itself does not protect anyone against anything”)). Because
Counts II and III are properly understood to allege violations of the Fourteenth Amendment, not
§ 1983, no amendment can save those counts. They will therefore be dismissed with prejudice.

                                                 4
        C. Ms. Argote’s Fourth Amendment Claims Fails against the District of Columbia

                Count I alleges a violation of the Fourth Amendment, which does apply to the

District. In order to state a claim for relief against a municipality, however, the § 1983 plaintiff

must show that the alleged harm was caused by a custom, policy or practice of the

municipality—not “solely by its employees or agents.” Monell v. Dep’t of Soc. Serv. of New

York, 436 U.S. 658, 694 (1978). In other words, the District is not liable under a theory of

respondeat superior for an alleged constitutional violation by a D.C. employee. See Okalahoma

City v. Tuttle, 471 U.S. 808, 818 (1985); Triplett v. District of Columbia, 108 F.3d 1450, 1453

(D.C. Cir. 1997).

                Ms. Argote has not adequately pleaded a custom, policy or practice on the

District’s part. To be sure, she alleges that MPD officers “regularly” commit the sort of

violations alleged here. Am. Compl. ¶¶ 19-20. She also includes “fail[ure] to properly train”

and “fail[ure] to monitor and manage” allegations. Id. ¶¶ 22-25. But none of those allegations is

supported by a single pleaded fact. Ms. Argote makes a wholly unsupported leap from the

premise of her own ordeal to the conclusion that this must be happening everywhere. The

complaint contains only “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements,” which “do not suffice.” Omnicare, Inc. v. Laborers Dist. Council

Const. Indus. Pension Fund, 135 S. Ct. 1318, 1332 (2015) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). Count I will be dismissed against the District for failure to plead a theory of

municipal liability that is plausible on its face.

                Count I remains against Officer Richardson.




                                                     5
       D. Ms. Argote’s Invasion of Privacy Claim will be Dismissed

               Under D.C. law, an invasion-of-privacy claim is subject to a one-year statute of

limitations. Greenpeace, Inc. v. Dow Chem. Co., 97 A.3d 1053, 1061-62 (D.C. 2014); Paul v.

Judicial Watch, Inc., 543 F. Supp. 2d 1, 10 (D.D.C. 2008).2 Ms. Argote does not disagree, nor

does she contest the Defendants’ assertion that her claim is untimely. The point is therefore

conceded. Texas v. United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (citing Local Civil Rule

7(b); Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014)). Count IV will be

dismissed.

       E. Ms. Argote’s Conversion Claim Will be Dismissed

               Defendants argue that “conversion cannot exist where the Plaintiff retains a copy

of, and therefore retains dominion and control over, her property.” Mot. at 9.3 They are correct.

               Conversion is “an unlawful exercise of ownership, dominion, and control over the

personalty of another in denial or repudiation of his right to such property.” Greenpeace, 97

A.3d at 1063 (quoting Wash. Gas Light Co. v. Pub. Serv. Comm’n, 61 A.3d 662, 675 (D.C.



2
  Invasion of privacy is not one tort, in fact, but “a complex of four, each with distinct elements
and each describing a separate interest capable of being invaded.” Wolf v. Regardie, 553 A.2d
1213, 1216-17 (D.C. 1989). The four torts are: “(1) intrusion upon one’s solitude or seclusion
[“intrusion”]; (2) public disclosure of private facts [“public disclosure”]; (3) publicity that places
one in a false light in the public eye [“false light”]; and (4) appropriating one’s name or likeness
for another’s benefit [“appropriation”].” Id. at 1217 (citing Vassiliades v. Garfinckel's, Brooks
Bros., 492 A.2d 580, 587 (D.C. 1985)). Plaintiffs may allege violations of any of the four
protected interests. Greenpeace, 97 A.3d at 1061.
3
  Ms. Argote also accuses Defendants of categorically exempting intangible property from the
tort of conversion. It is not clear that Defendants ever made such an argument, and they disclaim
it in their Reply. To date, “it remains an open question whether District of Columbia law would
protect intangible property” in a tort action for conversion. Xereas v. Heiss, 933 F. Supp. 2d 1, 6
(D.D.C. 2013) (citing Kaempe v. Myers, 367 F.3d 958, 963 (D.C.Cir.2004); Equity Grp., Ltd. v.
PaineWebber Inc., 48 F.3d 1285, 1286 (D.C.Cir.1995)). This Court will proceed as if such
property would be protected.

                                                  6
2013)). When a defendant’s interference “falls short of the complete or very substantial

deprivation of possessory rights in the property, the tort committed is not conversion.” Furash &

Co. v. McClave, 130 F. Supp. 2d 48, 58 (D.D.C. 2001) (quoting Pearson v. Dodd, 410 F.2d 701,

706 (D.C. Cir. 1969)).

               In this case, Officer Richardson texted himself a copy of Ms. Argote’s image.

The image itself remained on her phone. In analogous cases, this has been held to fall short of

conversion. In Pearson, for example, congressional employees broke into their office and took

documents. 410 F.2d at 706. They copied those documents overnight and returned the originals

to the office. Id. The D.C. Circuit concluded that this was not conversion. Id.

               Ms. Argote relies on a more recent case: Council on American-Islamic Relations

v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C. 2011). There the court observed, as Ms. Argote

emphasizes in boldface, that “it remains an open question whether District of Columbia law

would protect intangible property” in a tort action for conversion. Id. at 339; see Opp’n at 7.

That much is true, but it is also a dictum. Ms. Argote overlooks the holding of that case, which

was that “Plaintiffs ha[d] otherwise failed to state a plausible claim for the conversion of

electronic data.” Id. at 340. That was because “[a]t best, Plaintiffs ha[d] alleged that Defendants

accessed and copied electronic data,” and the “mere copying of documents does not seriously

interfere with the plaintiff’s right of control.” Id. (citing Furash & Co., 130 F. Supp. 2d at 58;

Pearson, 410 F.2d at 706).4

               That is precisely the case here. Officer Richardson may have unlawfully accessed

Ms. Argote’s phone and committed the despicable act of texting her nude picture to himself, but


4
 Accord FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 303-04 (7th Cir. 1990) (applying
California law); Internet Archive v. Shell, 505 F. Supp. 2d 755, 763 (D. Colo. 2007) (applying
Colorado law).

                                                  7
that was not conversion because it did not seriously interfere with Ms. Argote’s ownership or

control of her picture. The actions may be redressable through other means, but not the tort of

conversion. Count V will be dismissed against all defendants.

                                       IV. CONCLUSION

                For the reasons stated above, Counts II, III, IV and V will be dismissed as against

all defendants. Count I will be dismissed as against the District for failure to plead municipal

liability adequately. Ms. Argote may still pursue Count I against Officer Richardson, however,

for personal liability.

                A memorializing Order accompanies this Opinion.


Date: January 8, 2016                                                /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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