                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



BRENDA K. GARAY, et al.,

        Plaintiffs,
               v.                                         Civil Action No. 11-1207 (JEB)
ANDERSON LIRIANO, et al.,

        Defendants.


                         MEMORANDUM OPINION AND ORDER

        On April 14, 2010, Plaintiffs Brenda Garay and her minor daughters Jennifer and Jessica

were arrested in their apartment on Fairmont Street, Northwest, in the District of Columbia on

the charge of assault. This occurred after two police officers, Defendants Anderson Liriano and

Rafael Sarita, had arrived at the building and enlisted the assistance of the property manager,

Tisa Wilson, in opening Plaintiffs’ door.

        Plaintiffs have now sued both officers, the District of Columbia, Wilson, and her

employer Van Metre Columbia Uptown Apartments, L.L.C. for violations of Plaintiffs’

constitutional rights under 42 U.S.C. § 1983, as well as for assorted common-law claims.

Although the District and the officers have submitted an Answer, Wilson and Van Metre have

now filed a Motion to Dismiss, arguing that the Complaint fails to state a claim upon which relief

may be granted. The Court, agreeing with some of their arguments, will grant the Motion in part

and deny it in part.

   I.      Background

        According to the Third Amended Complaint, which must be presumed true for purposes

of this Motion, when the officers arrived at Plaintiffs’ apartment, they knocked on the door and

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informed Brenda that they were police officers. Compl. at 3. She refused to open the door and

demanded a court order. Id. The officers then went to Defendant Wilson’s office and asked her

to open the door. Id. She told them that she usually did not do so without a warrant, but “the

officers kept insisting that [she] open the door, or they will break it down.” Id. She then opened

the door with her key, and the officers arrested Brenda and Jennifer. Id. at 4-5. Jessica was

arrested later, and Jennifer subsequently was released. Id. at 5. Plaintiffs allege that this arrest

for the misdemeanor of simple assault was without probable cause. Id.

          Plaintiffs then brought this suit, asserting claims for violations of § 1983 against all

Defendants except Van Metre, false arrest and imprisonment against the officers and the District,

intentional infliction of emotional distress against all Defendants, malicious prosecution against

the officers and the District, and invasion of privacy and trespass against all Defendants.

          The District and the officers have filed an Answer, but Wilson and Van Metre have now

moved to dismiss the four counts asserted against them.

    II.      Legal Standard


          Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” When the sufficiency of a

complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be

presumed true and should be liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty.

Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). Although the notice pleading rules are

“not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”


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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put

forth “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes,

416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to

relief above the speculative level.” Id. at 555.


   III.      Analysis


          Plaintiffs’ § 1983 claim is brought against Wilson alone. Three additional counts are

asserted here against both Wilson and Van Metre: intentional infliction of emotional distress

(IIED), invasion of privacy, and trespass. The Court will deal with each of the four in turn.

          A. § 1983

          Plaintiffs’ first cause of action against Wilson (but not Van Metre) is for a violation of 42

U.S.C. § 1983. Section 1983 provides for a cause of action against

             [e]very 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 . . . .

To state a claim under § 1983, a plaintiff must plead facts sufficient to allege 1) “the violation of

a right secured by the Constitution and the laws of the United States” and 2) “that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487

U.S. 42, 48 (1988).

          The battle here is waged over the second prong. Was Wilson in fact “a person acting

under color of state law”? Simply because she was not a state employee does not end the

analysis. The D.C. Circuit has held: “Private parties . . . may be deemed to have acted under

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color of law in two circumstances: when they conspire with state officials, and when they

willfully engage in joint activity with a state or its agents.” Hoai v. Vo, 935 F.2d 308, 313 (D.C.

Cir. 1991) (citations omitted). Wilson argues that she did not “willfully” engage in joint activity

with the officers since the Complaint alleges that “‘the officers kept insisting that I open the

door, or they will break it down. I opened the door . . . .’” Compl. at 3 (quoting Wilson). She is

correct.

       Almost the identical situation was presented in Harvey v. Plains Township Police Dept.,

421 F.3d 185 (3d Cir. 2005), a case Plaintiffs themselves cite. See Opp. at 3. There, a tenant

brought a § 1983 suit against her landlord and a police officer, whom she alleged improperly

entered her apartment to assist her former boyfriend in retrieving his belongings. In affirming

the district court’s grant of summary judgment to the landlord, the court assumed that the police

officer had ordered the landlord to open the door. See 421 F.3d at 195. The court first noted that

the “Supreme Court’s language requiring joint action [between the state actor and the private

person] or action in concert suggests that some sort of common purpose or intent must be

shown.” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982)). The court then

concluded:

               Although the facts of this situation appear to render Chukinas [the
               landlord] a “participant,” they do not suggest that she was a willful
               participant. [United States v. Price, 383 U.S. 787 (1966)] requires
               willful participation; a private citizen acting at the orders of a
               police officer is not generally acting in a willful manner, especially
               when that citizen has no self-interest in taking the action. See
               Black's Law Dictionary 1593 (defining “willful” as “[v]oluntary
               and intentional, but not necessarily malicious”); see also United
               States v. Cheape, 889 F.3d 477, 478 (3d Cir. 1989) (noting that the
               jury found that the defendant's “actions were wilful, and not the
               product of coercion or duress”). For the reasons just discussed, we
               believe that the willful participation required under Price means
               voluntary, uncoerced participation. See Sutton v. Providence St.
               Joseph Med. Ctr., 192 F.3d 826, 838 (9th Cir. 1999) (“[W]e would

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               expect that the private defendant is not responsible for the
               government's compulsion.”). Chukinas would therefore not be
               liable here because she had not willfully participated in the state
               action, as compulsion by the state negates the presence of
               willfulness.

Id. at 196 (emphasis original).

       The Court sees no material distinction here. Ordering a landlord to open the door appears

to be the functional equivalent of threatening to break the door down unless it is opened. The

Court thus believes that here, too, Wilson was not a willful participant; as such, she cannot be a

state actor for § 1983 purposes. See Hollman v. County of Suffolk, 2011 WL 2446428, at *8

(E.D.N.Y. 2011) (finding no § 1983 liability for private ambulance workers who did not treat

decedent where police officers ordered them not to attempt to provide medical treatment, thus

rendering them not “willful participants”).

       Defendants next argue that, if the Court dismisses the § 1983 count, it should dismiss

them from the action because there is no longer any federal subject-matter jurisdiction. This

ignores the fact that Plaintiffs’ § 1983 claims are still proceeding against the District and the

police officers. The Court thus may exercise supplemental jurisdiction, formerly known as

pendent jurisdiction, over the remaining common-law claims against Wilson and Van Metre.

       Under 28 U.S.C. § 1367(a), “in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are

so related to claims in the action within such original jurisdiction that they form part of the same

case or controversy.” This includes “claims that involve the joinder . . . of additional parties.”

Id.; see also Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 559 (2005) (“§

1367(a) is a broad jurisdictional grant, with no distinction drawn between pendent-claim and

pendent-party cases”); ABF Freight System, Inc. v. International Brotherhood of Teamsters, 645



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F.3d 954, 963 (8th Cir. 2011) (as court had original jurisdiction over action against one

defendant, it had supplemental jurisdiction over claims against another defendant “as the claims

against all defendants arose from the same facts”) (citations omitted).

       The decision of whether to exercise supplemental jurisdiction where a court has

dismissed all federal claims against a party is left to the court’s discretion as “pendent

jurisdiction is a doctrine of discretion, not of plaintiff's right.” United Mine Workers v. Gibbs,

383 U.S. 715, 726 (1966), quoted in Shekoyan v. Sibley Intern., 409 F.3d 414, 423 (D.C. 2005).

When deciding whether to exercise pendent jurisdiction, federal courts should consider “judicial

economy, convenience and fairness to litigants.” Id. In this case, a dismissal of Wilson and Van

Metre would not benefit judicial economy. Because the case is proceeding in this court against

the District and the officers, dismissal would mean dual suits in separate fora. In addition, the

remaining claims against Wilson and Van Metre are also asserted against the District and the

officers. The factors thus militate in favor of exercising supplemental jurisdiction over the

claims against Wilson and Van Metre. This is not to say that if the federal claim is ultimately

dismissed against the other defendants that the Court may not revisit this issue. For now, the

Court will turn to the three state-law causes of action.

       B. IIED

       To go forward on an IIED claim, a plaintiff must show that a defendant committed an

“outrageous” act that intentionally or recklessly caused the plaintiff severe emotional distress.

See Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002). Plaintiffs here must establish

that the conduct complained of 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.’” Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998) (citations omitted).



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“Liability 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)

(citations and internal quotation marks omitted). The District of Columbia Court of Appeals has

held that, although this can be an issue for the court, it should be submitted to the jury if

reasonable people could find the conduct complained of meets the “outrageous” standard. See

Herbin v. Hoeffel, 806 A.2d 186, 197 (D.C. 2002).

          Plaintiffs do not come close to clearing this high bar. For a property manager to use a

key to open a tenant’s door in normal circumstances, even if improper, could hardly be

characterized as outrageous conduct. To do so when accompanied by the police, who are

threatening to break down the door, is clearly not the perpetration of a “tort of outrage.” Tulin,

994 A.2d at 800-01 (quoting Bettis v. Islamic Republic of Iran, 315 F.3d 325, 326 (D.C. Cir.

2003)).

          C. Invasion of Privacy

          In next moving to dismiss Plaintiffs’ invasion-of-privacy claim, Defendants argue that

this “tort involves publication of private facts.” Mot. at 10. As this did not occur here, they

maintain, the cause of action does not lie. Defendants read the tort far too narrowly.

          As the D.C.C.A. has explained (in the very case Defendants cite): “Invasion of privacy is

not one tort, but a complex of four, each with distinct elements and each describing a separate

interest capable of being invaded. The four constituent torts are (1) intrusion upon one's solitude

or seclusion; (2) public disclosure of private facts; (3) publicity that places one in a false light in

the public eye; and (4) appropriating one's name or likeness for another's benefit.” Wolf v.

Regardie, 553 A.2d 1213, 1216-17 (D.C. 1989). In quite a lapse, Defendants have omitted all




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but the third, yet Plaintiffs’ claim here is obviously for the first – namely, intrusion upon

seclusion.

       “The tort of intrusion upon seclusion has three elements: (1) an invasion or interference

by physical intrusion, by use of a defendant's sense of sight or hearing, or by use of some other

form of investigation or examination; (2) into a place where the plaintiff has secluded himself, or

into his private or secret concerns; (3) that would be highly offensive to an ordinary, reasonable

person.” Id. at 1217 (citations and internal citations omitted). In fact, “the types of invasion

intrinsic in the tort” include “entering a plaintiff’s home without permission or searching his or

her belongings.” Id. at 1217-18 (citation omitted). As this is precisely what Plaintiffs have

alleged here, dismissal is not appropriate.

       D. Trespass

       The D.C. Circuit has held that “[t]he tort of trespass in the District of Columbia is the

intentional intrusion of a person or thing upon property that invades and disrupts the owner's

exclusive possession of that property.” Morgan v. Barry, 12 Fed. Appx. 1, 3 (D.C. Cir. 2000)

(internal quotation marks and citations omitted). More specifically, it is “simply an unauthorized

entry by one person upon the land of another.” Id. (citation omitted). “The question is . . . did

[the defendant] go upon [the land] without authority or license from the lawful proprietor?” Id.

(citation omitted).

       Plaintiffs here allege that Wilson used her spare key to open the apartment, let the

officers in, and then entered the apartment herself “behind the officers and stood at or near the

door while the officers placed the Plaintiffs’ [sic] under arrest.” Compl. at 4. Defendants do not

argue that, as the property manager, Wilson was somehow not a trespasser when she entered the

apartment; instead, they contend that “the allegations do not assert a volitional invasion by Ms.



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Wilson” since the unlocking of the door was done only upon police orders. Mot. at 10-11. In

addition, they argue that the Complaint never alleges that Wilson entered the premises. Id. at 11.

That is simply wrong. The Complaint specifically states that “Wilson also entered the apartment

behind the officers.” Compl. at 4. Since the Complaint does allege that Wilson entered the

apartment herself – and not at the behest of the police – the claim for trespass may proceed. It is

worth noting, however, that Plaintiff may be hard pressed to prove any injury from Wilson’s

entry of the apartment, but that issue is for another day.

   IV.      Conclusion

         The Court, therefore, ORDERS that:

         1. Defendants’ Motion is GRANTED IN PART and DENIED IN PART as set forth

            above;

         2. Count I (§ 1983 claim) is DISMISSED against Wilson, and Count IV (IIED) is

            DISMISSED against Wilson and Van Metre; and

         3. Defendants Wilson and Van Metre shall filed their Answer on or before March 30,

            2012.

         IT IS SO ORDERED.


                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge
Date: Mar. 15, 2012




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