                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 EDWARD CLARK,

                Plaintiff,

           v.                                              Civil Action No. 16-385 (CKK)

 DISTRICT OF COLUMBIA, et al.,

                Defendants.



                                  MEMORANDUM OPINION
                                     (March 14, 2017)

       Plaintiff Edward Clark filed suit against Defendants the District of Columbia and Detective

Steven E. Manley of the Metropolitan Police Department (“MPD”), alleging negligent infliction

of emotional distress, malicious prosecution, and deprivation of civil rights arising out of the

investigation leading to Plaintiff’s arrest in July 2014, his subsequent detention, and the related

criminal proceedings. Presently before the Court is Defendants’ [7] Motion to Dismiss the

Complaint or in the Alternative for Summary Judgment, requesting that the Court dismiss or enter

judgment in Defendants’ favor on Plaintiff’s claims in their entirety. Upon consideration of the

pleadings, 1 the relevant legal authorities, and the record as a whole, the Court shall GRANT IN

PART and DENY IN PART Defendants’ [7] Motion to Dismiss the Complaint or in the Alternative


       1
          While the Court bases its decision on the record as a whole, its consideration has focused
on the following documents: Compl., at 5-10, ECF No. [1-1]; Defs.’ Mot. to Dismiss the Compl.
or in the Alternative for Summ. J. (“Defs.’ Mot.”), ECF No. [7]; Pl.’s Mem. of P&A in Opp’n to
Defs.’ Mot. to Dismiss and/or for Summ. J. (“Pl.’s Opp’n”), ECF No. [9]; Defs.’ Reply to Pl.’s
Opp’n to Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. [10]; Pl.’s Surreply in Opp’n to Defs.’
Mot. to Dismiss and/or for Summ. J. (“Pl.’s Surreply”), ECF No. [11]. These motions are fully
briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that holding oral
argument would not be of assistance in rendering its decision. See LCvR 7(f).


                                                  1
for Summary Judgment. Specifically, the Court shall GRANT Defendants’ request to dismiss

Plaintiff’s negligent infliction of emotional distress claim. The Court shall DENY Defendants’

request to dismiss Plaintiff’s malicious prosecution and Fourth Amendment claims.

                                        I. BACKGROUND

       For the purposes of Defendants’ motion to dismiss, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the

principal facts pertaining to the issues raised in the pending motion, reserving further presentation

of the facts for the discussion of the individual issues below.

       In 2013, Defendant Manley, an MPD detective, was assigned to the Narcotics and Special

Investigations Division’s Major Case Unit. Compl. ¶ 6. During the course of an investigation into

the sale and/or distribution of PCP, Defendant Manley associated with Plaintiff a phone number

allegedly called by one of his targets. However, the phone number in question did not belong to

Plaintiff during any point when it was allegedly being called by the target of the investigation. Id.

¶¶ 6-7. Defendant Manley then obtained a photograph of Plaintiff and showed it to an alleged

cooperating witness whom Defendant Manley later asserted identified Plaintiff as an individual

who participated in a drug transaction. Id. ¶ 8. At all times during which Plaintiff was alleged to

be in contact with a drug dealer and/or distributing illegal drugs, Plaintiff was at his job as a meat

clerk at Giant Food or home with his family. Id. ¶ 9.

       As a result of the information obtained by Defendant Manley, an arrest warrant was issued

for Plaintiff on or about March 27, 2014. Id. ¶ 10. Plaintiff was arrested on July 17, 2014, and

charged in this Court with conspiracy to distribute narcotics. Id. Plaintiff was fingerprinted,




                                                  2
booked, and detained. Id. After a detention hearing on July 22, 2014, Plaintiff was released from

custody under high intensity supervision that included use of a GPS tracking bracelet and

requirements that Plaintiff subject himself to weekly reporting and drug testing. Id. Plaintiff

appeared before this Court on July 31, 2014, September 24, 2014, October 21, 2014, and

November 10, 2014, in the criminal proceeding. Id. ¶ 11. A trial date was set for March 2, 2015.

Id. However, the Government filed a motion to dismiss the charge which was granted by this

Court on December 31, 2014. Id. ¶ 12.

       Plaintiff now brings this action against Defendant Manley in his official and individual

capacities and against the District of Columbia, which Plaintiff asserts is responsible for the actions

of MPD detectives, alleging three claims – negligent infliction of emotional distress, malicious

prosecution, and deprivation of civil rights in violation of the Fourth Amendment of the United

States Constitution. Defendants move the Court to dismiss all three claims against them for failure

to state a claim upon which relief can be granted. With respect to the negligent infliction of

emotional distress claim against the District, Defendants, in the alternative, request that the Court

grant summary judgment in their favor.

                                     II. LEGAL STANDARD

       The Court only sets forth the standard for a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) because it does not reach Defendants’ request for summary judgment

pursuant to Rule 56. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to

dismiss a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint 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) (quoting Conley v. Gibson, 355 U.S. 41, 47


                                                  3
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). “[A] complaint [does

not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must

contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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

for the misconduct alleged.” Iqbal, 556 U.S. at 678.

        In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must

construe the complaint in the light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). Further, in

deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint,

documents attached as exhibits or incorporated by reference in the complaint,” or “documents

upon which the plaintiff’s complaint necessarily relies even if the document is produced not by

the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of

Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (citations omitted).

                                           III. DISCUSSION

        Defendants assert that each of Plaintiff’s three claims should be dismissed for failure to

state a claim upon which relief may be granted. The Court notes that while Defendants have styled

their motion in part as one seeking summary judgment, it appears Defendants are only seeking

summary judgment as to Plaintiff’s negligent infliction of emotional distress claim brought against




                                                     4
the District. 2 As an initial matter, the Court notes that the Complaint is not a model of detail.

However, for the reasons described herein, the Court finds that Plaintiff has pled sufficient facts

to withstand a motion to dismiss on his malicious prosecution and Fourth Amendment claims. The

Court further finds that Plaintiff has failed to state a claim for negligent infliction of emotional

distress upon which relief may be granted and, accordingly, the Court shall dismiss that claim.

The Court shall address each claim in turn.

       A. Negligent Infliction of Emotional Distress Claim

       First, Defendants allege that Plaintiff has not sufficiently pled a negligent infliction of

emotional distress claim and, as such, argue that the claim should be dismissed. 3 In the alternative,

Defendants assert that the Court should grant summary judgment in their favor on this claim

because Plaintiff failed to satisfy the mandatory notice requirement pursuant to D.C. Code § 12-

309. For the reasons described herein, the Court finds that Plaintiff failed to sufficiently plead

each element of the claim of negligent infliction of emotional distress and the Court shall dismiss

the claim on that ground. Accordingly, the Court shall not reach Defendants’ request for summary

judgment. 4




       2
          Plaintiff makes this assertion in his opposition, which Defendants do not dispute in their
reply. Moreover, the Defendants’ Statement of Material Facts appears to only pertain to the
negligent infliction of emotional distress claim. See Defs.’ Stmt. of Material Facts, ECF No. [7-1].
        3
          In their initial motion, Defendants incorrectly cited to the standard for intentional, rather
than negligent, infliction of emotional distress and made an argument for dismissal based on that
standard. Plaintiff pointed out this error in his opposition to the motion and Defendants made the
argument above in their reply brief. As such, the Court afforded Plaintiff an opportunity to respond
to the argument in a surreply.
        4
          The crux of Defendants’ argument is that Plaintiff did not provide written notice to the
District within six months of the District’s alleged tortious conduct because the notice was sent on
June 30, 2015, five months after the six-month period expired. Defs.’ Mot. at 10-11. Plaintiff
argues that the notice requirement only applies to claims brought against the District and not
against MPD police officers. Plaintiff also contends that he need not further respond to this
argument “inasmuch as his claim against defendant Manley is unaffected by the § 12-309 issue


                                                  5
        Under District of Columbia law, a plaintiff may make out a claim for negligent infliction

of emotional distress in one of two ways. First, “a plaintiff must show that ‘(1) the plaintiff was

in the zone of physical danger, which was (2) created by the defendant’s negligence, (3) the

plaintiff feared for his own safety, and (4) the emotional distress so caused was serious and

verifiable.”” Harris v. United States VA, 776 F.3d 907, 915 (D.C. Cir. 2015) (quoting Rice v.

District of Columbia, 774 F. Supp. 2d 25, 33 (D.D.C. 2011)). In the alternative, a plaintiff may

show that “(1) the defendant has a relationship with the plaintiff, or has undertaken an obligation

to the plaintiff, of a nature that necessarily implicates the plaintiff’s emotional well-being, (2) there

is an especially likely risk that the defendant’s negligence would cause serious emotional distress

to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation

have, in fact, caused serious emotional distress to the plaintiff.” Hedgepeth v. Whitman Walker

Clinic, 22 A.3d 789, 810-11 (D.C. 2011) (en banc). Neither party argues that the former standard

is applicable here and, as such, the Court shall focus its analysis on whether Plaintiff has pled a

plausible claim under the latter standard. Specifically, Defendants dispute whether Plaintiff

sufficiently pled a relationship between Defendant Manley and Plaintiff or an obligation

undertaken by Defendant Manley that would give rise to a duty to avoid negligent infliction of

emotional distress. 5

        Plaintiff argues that “the relationship that he had with defendant Manley, that of arrestee

and arrester, necessarily implicated his well-being and the negligence with which Manley

performed his obligations during the course of that relationship, was the direct cause of plaintiff’s




and any claim in this regard against the District of Columbia would be vicarious.” Pl.’s Opp’n at
8 n.1. Defendant did not respond to this argument in their reply brief.
       5
         The Court focuses its analysis on Defendant Manley’s conduct because Plaintiff has
conceded that the District may only be vicariously liable for this claim. Pl.’s Opp’n at 8 n.1.


                                                   6
emotional distress which is an actionable claim as a matter of law.” Pl.’s Surreply at 2. Plaintiff

also asserts that “defendant Manley owed a duty to the plaintiff to cause his arrest only upon the

submission of truthful statements regarding his conduct.” Id.

       The determination of whether a relationship or undertaking implicates a plaintiff’s

emotional well-being must be made on a case-by-case basis. Hedgepeth, 22 A.3d at 812. The

District of Columbia Court of Appeals (“D.C. Court of Appeals”) explained that certain

relationships, such as that of therapist and patient very clearly implicate the patient’s emotional

well-being. However, while other doctor-patient relationships also may implicate a patient’s

emotional well-being because of the close link between physical illness or conditions and mental

and emotional distress, the court is tasked with considering societal norms and evidence of

professional and ethical standards and norms to determine whether a particular doctor-patient

relationship is one in which it would be especially likely that serious emotional distress would

result from a doctor’s negligent performance. Id. at 813-14 (distinguishing a doctor tasked with

delivering a baby from a doctor engaged in treating an ingrown nail). Outside of the doctor-patient

context, the D.C. Court of Appeals recognized that there are “other situations where the emotional

well-being of others is at the core of, or is necessarily implicated by, the undertaking.” Id. at 814

(emphasis added). Examples cited of same include a hospital’s false report of a death of a loved

one and a funeral home’s mishandling of a corpse, situations in which the court found it was

apparent that the loved ones were the beneficiary of the obligation. The D.C. Court of Appeals

further recognized that in some instances, persons appointed to act as guardians and counsel for

those who are especially vulnerable such as children, the elderly, and the disabled, may also meet

the requirements, but only after the court weighs statutory, professional, and ethical standards, the

nature of the interests of the ward or client that the guardian or counsel is obligated to further and




                                                  7
protect, and relevant policy considerations. Id. at 814-15. The D.C. Court of Appeals further

noted that fiduciary relations generally do not satisfy the standard because “the object of the

engagement is to obtain a financial, commercial or legal objective, even if its non-attainment due

to the fiduciary’s negligence is emotionally distressing to the client.” Id. at 815.

       With this context in mind, the Court must determine whether Defendant Manley’s

undertaking at issue, namely the criminal investigation, or the relationship between Defendant

Manley, as the police officer in charge of the investigation that ultimately led to Plaintiff’s arrest,

and Plaintiff, the arrestee, meets the standard. As the D.C. Court of Appeals explained:

       [T]he determinative factor will always be whether the facts of the particular case
       show that the essential elements of the duty are presented: (1) a relationship or
       undertaking to the plaintiff that necessarily implicates the plaintiff’s emotional
       well-being, and (2) the special likelihood that the defendant’s negligence in the
       course of performing obligations pursuant to such relationship or undertaking will
       result in [serious] emotional distress.

Id. at 815. One district court in this jurisdiction examining the issue summarized the necessary

consideration as follows: “[E]ven if the purpose of a relationship is to achieve an objective for the

benefit of a client, if that objective does not necessarily implicate the client’s emotional well-

being—even if it has an effect on it—the relationship is not ‘special’ for purposes of [a negligent

infliction of emotional distress claim].” Lesesne v. District of Columbia, 146 F. Supp. 3d 190, 196

(D.D.C. 2015). In that case, the court found that a custodial relationship was undertaken by a

correctional officer to “neutralize a threat allegedly posed by the person in custody, for the benefit

of the community” and, accordingly, did not constitute a special relationship that could give rise

to a negligent infliction of emotional distress claim. Id. at 197. The Court is persuaded by this

reasoning when considering the facts of the instant case.

       Here, Defendant Manley through the course of his investigation and through the arrest of

Plaintiff did not establish a relationship or undertaking to Plaintiff that necessarily implicates



                                                  8
Plaintiff’s emotional well-being nor was there a special likelihood that Defendant Manley’s

alleged negligence in the course of performing his duties would result in serious emotional distress

to Plaintiff. Notably, the object of Defendant Manley’s engagement in investigating and arresting

Plaintiff was clearly not for the benefit of Plaintiff. Rather, Defendant Manley undertook this

obligation for a law enforcement purpose, to investigate the illegal sale of PCP and apprehend

those involved, for the benefit of the community. While the investigation of Plaintiff as a suspect

in criminal activity and his related arrest may be emotionally distressing to Plaintiff if conducted

negligently, it does not form the type of relationship or undertaking between Defendant Manley

and Plaintiff that would give rise to a negligent infliction of emotional distress claim. See Aubin

v. District of Columbia, No. 14-02133 (RJL), 2016 WL 509283, at *6 (D.D.C. Feb. 8, 2016)

(holding a police officer did not have the requisite relationship with, or undertook an obligation

to, an arrestee that implicated the arrestee’s emotional well-being). Plaintiff has not pled any

additional facts regarding the parties’ relationship or Defendant Manley’s undertaking that would

alter the Court’s analysis. As such, the Court concludes that Plaintiff may not recover for negligent

infliction of emotional distress because Plaintiff has not pled a relationship or undertaking on the

part of Defendant Manley to Plaintiff that necessarily implicates Plaintiff’s emotional well-being.

To hold otherwise would extend a cause of action to the target of any criminal investigation against

an investigating officer.

       In support of his argument, Plaintiff notes that in other contexts a plaintiff may recover

from a police officer under a common law theory and points to two provisions of the D.C. Code

that prohibit making a knowing false or fictitious report of the commission of a criminal offense

and willfully making a false statement if the statement could reasonably be expected to be relied

upon as true. See generally Pls.’ Surreply at 2. The Court finds neither argument persuasive. As




                                                 9
an initial matter, the Court has applied the proper standard to determine whether Plaintiff may

recover based on the facts alleged in his Complaint for a claim of negligent infliction of emotional

distress, not other common law causes of action more generally. Further, the fact that certain

statutory provisions prohibit the making of knowing or willful false statements does not support

the inference that a cause of action should be extended to negligent conduct. While Plaintiff may

advance alternate theories including theories grounded in negligence and theories not grounded in

negligence, he still must plead sufficient facts to satisfy the essential elements of each claim. Here,

Plaintiff has failed to do so and, as such, the Court shall dismiss Plaintiff’s negligent infliction of

emotional distress claim.

       B. Malicious Prosecution Claim

       Next, Defendants assert that Plaintiff has not sufficiently pled each element of a malicious

prosecution claim. With respect to a malicious prosecution claim, Plaintiff must establish the

following elements: “‘(a) a criminal proceeding instituted or continued by the defendant against

the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable

cause for the proceeding, and (d) ‘Malice,’ or a primary purpose in instituting the proceeding other

than that of bringing an offender to justice.’” DeWitt v. District of Columbia, 43 A.3d 291, 296

(D.C. 2012), cert. denied 133 S. Ct. 449 (2012) (quoting Jarett v. Walker, 201 A.2d 523, 526 (D.C.

1964)). Here, Defendants allege that the malicious prosecution claim should be dismissed on two

bases. First, Defendants argue that Plaintiff failed to plead sufficient facts to give rise to an

inference of malice. Second, Defendants assert that Plaintiff does not allege sufficient facts to

plausibly give rise to an inference that the criminal case was terminated in his favor. The Court

shall address each argument in turn.




                                                  10
        Turning first to the argument regarding malice, Defendants assert that Plaintiff only alleges

negligent conduct on the part of Defendant Manley and, as such, Defendants argue that Plaintiff

has not sufficiently pled the malice requirement. “The determination of malice is ‘exclusively for

the factfinder,’ and ‘the requisite malice can be established from the existence of a willful, wanton,

reckless, or oppressive disregard for the rights of the plaintiff.’” Pitt v. District of Columbia, 491

F.3d 494, 504 (D.C. Cir. 2007) (quoting Tyler v. Cent. Charge Serv., Inc., 444 A.2d 965, 969 (D.C.

1982)). Further, malice may be presumed from the lack of probable cause. Amobi v. D.C. Dep’t

of Corr., 755 F.3d 980, 993 (D.C. Cir. 2014). Here, Plaintiff pled that he was prosecuted despite

a lack of probable cause based on “neglect, incompetence, laziness and/or indifference” on the part

of Defendant Manley. Compl. ¶ 10. Specifically, Plaintiff alleges that Defendant Manley

incorrectly associated a phone number with Plaintiff and showed a photo to an alleged cooperating

witness in a manner contrary to police practices and the law related to out-of-court identifications.

Id. ¶¶ 7-8. Moreover, Plaintiff asserts that he had alibi witnesses for the times when the alleged

criminal activity occurred because he was either at work or at home with his family. Id. ¶ 9.

Specifically, Plaintiff asserts that he was prosecuted for charges that Defendants “knew or should

have known had no basis in fact or law.” Id. ¶ 18 (emphasis added). The Court finds this sufficient

to demonstrate malice at the pleading stage and, as such, shall deny Defendants’ request to dismiss

Plaintiff’s malicious prosecution claim on the grounds that Plaintiff has failed to plead malice.

        Turning next to the argument regarding the termination of the criminal case, the parties

dispute whether Plaintiff has sufficiently pled that there was a decision in his favor in the

underlying criminal case.      Indeed, under District of Columbia law, a Plaintiff must show

termination of the underlying suit in the Plaintiff’s favor in order to prevail on a claim for malicious

prosecution. Harris v. District of Columbia, 696 F. Supp. 2d 123, 134 (D.D.C. 2010).




                                                  11
Furthermore, “the termination must reflect on the merits of the underlying action.” Brown v. Carr,

503 A.2d 1241, 1245 (D.C. 1986). In Brown, the D.C. Court of Appeals adopted the approach of

the California courts to malicious prosecution claims.          Harris, 696 F. Supp. 2d at 134.

Accordingly, “‘[i]f [the termination] is of such a nature as to indicate the innocence of the accused,

it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on

technical grounds, for procedural reasons, . . . it does not constitute favorable termination.’” Id.

(quoting Brown, 503 A.2d at 1245). “[D]ismissal for failure to prosecute has been held to be a

favorable termination where the facts of the case indicate that such a disposition reflects on the

innocence of the defendant in the underlying suit.” Brown, 503 A.2d at 1245 (emphasis added).

       As such, the issue before the Court is whether Plaintiff has plausibly pled that the dismissal

of the criminal case reflects Plaintiff’s innocence. “[A] dismissal without prejudice ‘renders the

proceedings a nullity and leave[s] the parties as if the action had never been brought.’”

Thoubboron v. Ford Motor Company, 809 A.2d 1204, 1210 (D.C. 2002) (quoting Bonneville

Assocs. Ltd. v. Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (citations omitted)). However, some

courts addressing the issue have considered whether a plaintiff has identified facts surrounding the

dismissal without prejudice that, if proven, would demonstrate that the termination of the criminal

case tended to show the plaintiff’s innocence. See Blakeney v. O’Donnell, 117 F. Supp. 3d 6, 20

(D.D.C. 2015) (holding that the court could plausibly infer from the dismissal coupled with the

allegations of the plaintiff’s false arrest that the termination of the plaintiff’s prosecution tended

to indicate his innocence at the motion to dismiss stage). See also Thorp v. District of Columbia,

142 F. Supp. 3d 132, 145 (D.D.C. 2015) (holding that the bare assertion that a dismissal without

prejudice was “favorable” to the plaintiff was insufficient to survive a motion to dismiss); Harris,




                                                 12
696 F. Supp. 2d at 134 (finding that the plaintiff did not allege any facts that would demonstrate a

termination on the merits).

       In the criminal case at issue, the government filed a motion to dismiss the case without

prejudice pursuant to Federal Rule of Criminal Procedure 48(a). 6 Govt.’s Mot. to Dismiss Without

Prejudice, United States v. Clark, No. 14cr72-02-CKK (D.D.C. Dec. 30, 2014), ECF No. [11].

The motion otherwise provides no information about the government’s basis for requesting the

dismissal of the case. After considering the motion, the Court entered an order that indicated:

“Pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, the Court hereby GRANTS

the Government’s request for leave to DISMISS the charge contained in the indictment in Count

One only as to defendant Edward Clark WITHOUT PREJUDICE.” Min. Order, Clark, No. 14cr72-

02-CKK (D.D.C. Dec. 31, 2014). However, in his Complaint, Plaintiff further alleges: “The

government did not finally acknowledge that the charges against the plaintiff were bogus until

December, 2014, when it filed a motion to dismiss the charge against the plaintiff that was granted

by the district court on December 31, 2014.” Compl. ¶ 12.

       Here, Plaintiff asserts that his arrest and subsequent prosecution were based on false

information provided by Defendant Manley. Plaintiff further alleges that the government

acknowledged that the charges against him were “bogus” when it moved to dismiss the criminal

case without prejudice. As such, the Court concludes that Plaintiff has pled sufficient facts for the

Court to draw a plausible inference, at this stage of the proceeding, that the government’s voluntary

dismissal of the case without prejudice tends to reflect Plaintiff’s innocence. Accordingly, the




       6
         The Court takes judicial notice of the record in the criminal case underlying Plaintiff’s
malicious prosecution claim. See Fed. R. Evid. 201(a), (b); Rogers v. District of Columbia, 880
F. Supp. 2d 163, 166 (D.D.C. 2012) (finding the Court may take judicial notice of docket sheets
which are public records for evidentiary purposes).


                                                 13
Court shall deny Defendants’ request that the Court dismiss Plaintiff’s malicious prosecution claim

as Plaintiff has sufficiently pled each element of the claim.

       C. Fourth Amendment Claim

       Finally, Plaintiff asserts that Defendant Manley violated Plaintiff’s Fourth Amendment

right to be free from an unreasonable seizure due to Plaintiff’s allegedly unlawful detention and

the malicious prosecution of Plaintiff. Compl. ¶ 22. Defendants contend that Plaintiff’s Fourth

Amendment claim should be dismissed because Defendant Manley is entitled to qualified

immunity as an MPD detective and because Plaintiff has not pled sufficient facts to survive a

motion to dismiss on this claim.

       Section 1983 provides a remedy against “any person” who, under color of state law,

deprives another of rights protected by the Constitution. 42 U.S.C. § 1983. However, a plaintiff

may not recover under § 1983 if the defendant is entitled to qualified immunity. See Scott v.

Harris, 550 U.S. 372, 376, n.2 (2007). “Qualified immunity shields federal and state officials from

money damages unless a plaintiff alleges facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “[C]onduct violates clearly established law when, at the time of the challenged

conduct, the contours of a right are sufficiently clear that every reasonable officer would have

understood that what he is doing violates that right.” Id. at 741 (internal quotation marks and

notations omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The district court

has the discretion to decide “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.” Pearson v. Callahan,

555 U.S. 223, 236 (2009). The doctrine “gives government officials breathing room to make




                                                 14
reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Elkins v. District of Columbia, 690 F.3d 554, 567-68 (D.C. Cir. 2012)

(quoting al-Kidd, 563 U.S. at 743).

       Defendants argue that Defendant Manley is entitled to qualified immunity on Plaintiff’s

Fourth Amendment claim because Plaintiff failed to plead that Defendant Manley violated a

“clearly established” right at the time of the conduct at issue. Defendants note that in this

jurisdiction, an indictment returned by a grand jury is prima facie evidence of probable cause. See

Def.’s Mot. at 8 (citing Moore v. Hartman, 571 F.3d 62, 69 (D.C. Cir. 2009)). However, the

presumption of probable cause may be rebutted by evidence that “the indictment was produced by

fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad

faith.” Moore, 571 F.3d at 69. See also Amobi, 755 F.3d at 992.

       Here, an indictment was returned by a grand jury charging Plaintiff with conspiracy to

distribute and possess with intent to distribute 100 grams or more of a mixture or substance

containing a detectable amount of PCP in violation of 21 U.S.C. § 846. However, Plaintiff

specifically alleges in his Complaint that Defendant Manley “with callous and deliberate

indifference to and in reckless disregard for the safety and well-being of the plaintiff and in

violation of the 4th Amendment to the [C]onstitution, made false accusations and statements in

police reports that he knew or should have known were false.” Compl. ¶ 23 (emphasis added).

While Defendants assert that Plaintiff did not provide any factual allegations to support this claim,

Plaintiff did allege that Defendant Manley incorrectly linked a phone number to Plaintiff through

“neglect, incompetence, laziness and/or indifference,” id. ¶ 7, that Defendant Manley showed a

photo of Plaintiff to an alleged cooperating witness in a manner contrary to police practices and

the applicable law, id. ¶ 8, that Plaintiff was unaware of the “false and reckless allegations” being




                                                 15
made about him, id. ¶ 9, that Plaintiff was either at work or home with his family during the times

of the alleged criminal activity being investigated, id., and that an arrest warrant was issued for

Plaintiff based on the “erroneous information” provided by Defendant Manley, id. ¶ 10. When

viewing the evidence in the light most favorable to Plaintiff, this information may have been

provided to the grand jury and led to the return of an indictment. The Court finds that Plaintiff has

sufficiently pled a basis to rebut the presumption that Plaintiff’s arrest was supported by probable

cause in light of the indictment and, relatedly, that Defendant Manley is entitled to qualified

immunity. In sum, the Court concludes that based on this record, Plaintiff has sufficiently pled his

malicious prosecution and Fourth Amendment claims. As such, the Court shall allow those claims

to proceed as the parties more fully develop the factual record. However, for the reasons described,

the Court shall dismiss Plaintiff’s negligent infliction of emotional distress claim.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendants’ [7] Motion to Dismiss the Complaint or in the Alternative for Summary Judgment.

Specifically, the Court concludes that Plaintiff has failed to sufficiently plead his negligent

infliction of emotional distress claim because he did not plead facts to demonstrate that Defendant

Manley had a relationship with Plaintiff, or had undertaken an obligation to Plaintiff, of a nature

that necessarily implicates Plaintiff’s emotional well-being. As such, the motion is GRANTED in

that the Court shall dismiss Plaintiff’s negligent infliction of emotional distress claim. The Court

finds that Plaintiff sufficiently pled his malicious prosecution and Fourth Amendment claims and

the motion to dismiss is DENIED with respect to those remaining claims.




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An appropriate Order accompanies this Memorandum Opinion.

                                                           /s/
                                               COLLEEN KOLLAR-KOTELLY
                                               United States District Judge




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