                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


MICHAEL ROY JOHNSON,                    )
                                        )
               Plaintiff,               )
                                        )
               v.                       )              Civil Action No. 13-1127 (RC)
                                        )
DISTRICT OF COLUMBIA et al.,            )
                                        )
               Defendants.              )


                                  MEMORANDUM OPINION

       Plaintiff, a prisoner currently incarcerated at the United States Penitentiary in Atwater,

California, seeks to hold the District of Columbia liable under 42 U.S.C. § 1983 for the alleged

actions of a former officer of the Metropolitan Police Department, Detective John Burke, whom

plaintiff holds responsible for his arrest for rape in 1989. See Compl. for Violation of Civil Rights

[Dkt. # 1] at 5-8. 1 The District of Columbia moves to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Def.

District of Columbia’s Mot. to Dismiss [Dkt. # 11]. Plaintiff has filed an opposition [Dkt. # 30],

the District has replied [Dkt. # 33], and plaintiff was granted leave to file a surreply [Dkt. # 35].




1
    Plaintiff was granted leave to file both an amended complaint and a supplemental complaint.
In the Amended Complaint filed October 7, 2013 [Dkt. # 7], plaintiff states that he is “adding
additional parties and claims,” and in the Supplemental Complaint filed November 12, 2013, he
“ask[s] that this supplement be incorporated and read in conjunction with the Original and
Amended Complaints.” Suppl. Am. Compl. [Dkt. # 9] at 2. The Court must construe pro se
filings liberally and, thus, considers collectively the original complaint (“Compl.), the amended
complaint (“Am. Compl.”), and the supplemental complaint (“Supp. Compl.”). The Court will
cite the page numbers assigned by the electronic docketing system.

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       Because the alleged facts do not state a claim of municipal liability under section 1983, the

Court will grant the District’s motion and dismiss the complaint against this defendant. In

addition, because the alleged facts do not support a federal claim against Burke, who has yet to be

served with process, 2 the Court will dismiss the complaint against this defendant as it is required to

do “as soon as practicable” upon determining that a prisoner’s complaint (or portion thereof) fails

to state a claim upon which relief can be granted. 28 U.S.C. § 1915A.

                                           I. BACKGROUND

       The facts relevant to the District of Columbia and Detective Burke are set forth in the

original complaint and the supplemental complaint. 3 In the enumerated paragraphs comprising

his “Statement of Claim,” Compl. at 5, plaintiff alleges that on December 26, 1989, Burke

“presented [a] Complaint and his sworn Affidavit in Support of An Arrest Warrant to Superior

Court Judge Shelli Bowers,” who issued an arrest warrant “charging Plaintiff Johnson with rape

while armed.” Compl. ¶ 24. On December 27, 1989, plaintiff “presented himself for arrest,” id.

¶ 25, and was charged with rape while armed of his “19 year old, live-in girlfriend of 6 months.”



2
       Since liability under section 1983 “is personal to the defendant, the court must have
jurisdiction over [Burke] in order to bind [him] to a judgment,” Harris v. Fulwood, 989 F. Supp. 2d
64, 71 (D.D.C. 2013), and personal jurisdiction cannot be exercised “ ‘[w]ithout valid service of
summons or a waiver of service[.]’ ” Pollard v. District of Columbia, 285 F.R.D. 125, 127
(D.D.C. 2012) (quoting Mann v. Castiel, 729 F. Supp. 2d 191, 196 (D.D.C. 2010), citing Omni
Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). Plaintiff has yet to comply with the
court’s orders to provide a service address for Burke, who is no longer employed with the
Metropolitan Police Department. See Dec. 4, 2013 Order & U.S. Marshals Service’s Process
Receipt and Return [Dkt. # 15] (giving plaintiff until January 3, 2014, to supply information); Feb.
5, 2014 Min. Order (enlarging deadline to March 10, 2014); Pl.’s Feb. 18, 2014 Not. [Dkt. # 22]
(“Plaintiff . . . is . . . attempting to obtain Defendant Burke’s mailing address.”).
3
     Plaintiff also has named as defendants U.S. Parole Commission Chairman Isaac Fulwood, Jr.,
and several employees of the Commission whose pending motion to dismiss is being decided
separately.

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Id. ¶¶ 1-2. The arrest stemmed from events that had occurred on either December 24, 1989, or

December 25, 1989. See id. ¶¶ 4, 18.

       Plaintiff alleges that after Burke spoke with the complaining witness, he contacted plaintiff

and plaintiff agreed to appear for an interview with Burke at MPD’s Sex Offense Branch on

December 26, 1989. In addition to the interview, plaintiff submitted a handwritten statement

describing his version of the events. See id. ¶¶ 4-16.

       Plaintiff alleges that “Burke, without performing an adequate investigation, swore out [the

foregoing] Affidavit in Support of An Arrest Warrant, asserting that there’s probable cause and

reasonable grounds for the issuance of an arrest warrant for the Plaintiff . . . .” Id. ¶ 17.

According to plaintiff, “Burke asserted [in the affidavit] that on the night of December 25th, the

Complainant reported that she had been the victim of rape while armed with a knife . . . inside the

Complainant’s apartment.” Id. ¶ 18. Allegedly, Burke further stated that plaintiff had admitted

in his handwritten statement “ ‘to arming himself with a knife and to engaging the Complainant in

sexual intercourse.’ ” Id. ¶ 22. Plaintiff accuses Burke also of having “fabricated information in

the Police Report pertaining to Plaintiff[’s] M.O,” where he stated: “ ‘Uses knife and ball bat to

abuse women.’ ” Id. ¶¶ 26-27. Plaintiff “asserts that he has never been accused of abusing

anyone with a ball bat.” Id. ¶ 28.

       On March 17, 1990, plaintiff was released on bond “but [was] . . . arrested again and

charged with the rape of a 22 year old prostitute.” Id. ¶ 29. Plaintiff entered “a coerced guilty

plea in the latter case” and on November 27, 1990, “was sentenced to 15 years to life.” Id. ¶ 30;

see Johnson v. U.S., 633 A.2d 828 (D.C. 1993) (affirming denial of collateral motion to withdraw

guilty plea). The “December 1989 rape case was dismissed as part of the plea deal.” Compl. ¶

30. Plaintiff alleges that when he became eligible for parole in March 2000, a hearing examiner

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for the United States Parole Commission “asked about the 1989 rape allegations.” Id. ¶ 31. And

“[d]espite the facts that [plaintiff had] provided, the [C]ommission made a determination of guilt

based solely on the fabricated police report prepared by Defendant Burke.” Id. ¶ 33.

        Plaintiff “seeks to have . . . Burke reprimanded” for a list of “violations,” including

“knowingly provid[ing] false and misleading information to a sitting Judge with the intent to

deprive Plaintiff of his liberty[,] . . . fabricat[ing] information in a police report pertaining to the

Plaintiff’s M.O.[,] and willfully and with reckless disregard for the truth[,] [making] material

misrepresentations that would have otherwise been without probable cause in violation of

Plaintiff’s Fourth Amendment right to be free from unreasonable seizure.” Id. ¶¶ 61-64. In the

supplemental complaint, plaintiff claims that “Burke’s actions constitute negligence under D.C.

Code for falsifying a legal document [and] false swearing and perjury.” Supp. Compl. at 2.

        In addition, plaintiff “seeks a declaratory judgment asserting that his rights were violated .

. . and monetary damages . . . for the time the 1989 rape allegations have tainted his life and

deprived him of his liberty.” Compl. ¶ 74. He also “seeks to have the entire record pertaining to

his 1989 arrest for rape while armed expunged.” Id. ¶ 58.

                                            II. ANALYSIS

A. Legal Standard

        A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint.”

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The motion does not test a plaintiff's

ultimate likelihood of success on the merits, but only forces the court to determine whether a

plaintiff has properly stated a claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C.

Cir. 1991).



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       “To survive a 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)). A

plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” are therefore insufficient to withstand a

motion to dismiss. Iqbal, 556 U.S. at 678. In deciding a motion to dismiss, the court need not

accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as

factual allegations. See Warren v. District of Columbia, 353 F.3d 36, 39–40 (D.C. Cir. 2004);

Browning, 292 F.3d at 242.

B. Municipal Liability

       Section 1983 provides 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.

42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim “must allege both (1) that he was deprived

of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted

‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d

308, 312 (D.C. Cir. 1991). “Because vicarious liability is inapplicable to . . . § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official's own individual

actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. As a municipal corporation, the

District is a “person” within the meaning of the statute and is therefore subject to liability “when an

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official policy or custom causes [a] complainant to suffer a deprivation of constitutional” or other

federal right. Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986); accord Warren,

353 F.3d at 38; see also Moreno v. District of Columbia, 925 F. Supp. 2d 93, 99 (D.D.C. 2013) (“In

order for the District to be held liable for the acts of a wrongdoer under its authority, a plaintiff

must show that the District was the ‘moving force’ behind the alleged constitutional deprivation.”)

(quoting, Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658, 694 (1978)).

       Plaintiff does not allege (nor state any facts suggesting) that Burke was following official

policy, practice or custom when he produced the alleged fraudulent affidavit and police report.

Therefore, no federal claim has been stated against the District of Columbia, and the claim against

the District is dismissed.

C. The Claim Against Defendant Burke

       In the Relief section of the original complaint, plaintiff concludes that Burke “made

material misrepresentations that would have otherwise been without probable cause in violation of

Plaintiff’s Fourth Amendment right to be free from unreasonable seizure.” Compl. ¶ 64.

Presumably in support of this conclusion, plaintiff points to Burke’s alleged failure to include

plaintiff’s handwritten statement with the affidavit supporting the arrest warrant and his failure “to

inform the Judicial Officer of the facts he knew would negate probable cause.” Id. ¶¶ 65-66.

       The Fourth Amendment provides: “The right of the people to be secure in their persons . . .

against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause . . . .” U.S. Const. amend. IV. It is “well-settled that the Fourth

Amendment is violated when a suspect is arrested in the absence of probable cause.” Liser v.

Smith, 254 F. Supp. 2d 89, 104 (D.D.C. 2003) (citing Gerstein v. Pugh, 420 U.S. 103 (1975);

Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987)). But probable cause is determined by a

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reasonableness standard considering “the facts and circumstances within . . . the officers’

knowledge and of which they had reasonably trustworthy information” to believe “that an offense

has been or is being committed by the person to be arrested.” Dunaway v. New York, 442 U.S.

200, 208, n.9 (1979) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)) (internal

quotation marks and alterations omitted) (other citation omitted). See Brinegar, 338 U.S. at 175

(explaining that “[i]n dealing with probable cause, . . ., [a]s the very name implies, we deal with

probabilities. These are not technical; they are the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal technicians, act.”). The probable cause

standard requires “less evidence which would justify condemnation or conviction” but “more than

bare suspicion.” Id. See Amobi v. District of Columbia Dept. of Corrections, 755 F.3d 980, 990

(D.C. Cir. 2014) (“ ‘Once a police officer has a reasonable basis for believing there is probable

cause, he is not required to explore and eliminate every theoretically plausible claim of innocence

before making an arrest.’ ”) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.

1997)).

          The Report of Investigation (ROI) attached to plaintiff’s opposition belies any claim of a

Fourth Amendment violation. 4 See Pl.’s Opp’n, Ex. A. 5 The ROI contains details provided by


4
      Absent a Fourth Amendment violation, the Court has no basis to consider exercising its
equitable power and ordering the expungement of plaintiff’s 1989 arrest record (Compl. ¶ 58).
See Doe v. Webster, 606 F.2d 1226, 1231 n. 8 (D.C. Cir. 1979) (“The power to order expungement
is a part of the general power of the federal courts to fashion appropriate remedies to protect
important legal rights.”) (citing cases). Such action “is appropriate when serious governmental
misbehavior leading to the arrest, or unusually substantial harm to the defendant not in any way
attributable to him, outweighs the government’s need for a record of the arrest.” Id. at 1231; see
accord United States v. Blackwell, --- F. Supp. 2d ---, 2014 WL 2446648, at *1 (D.D.C. May 30,
2014) (“Absent a statutory basis authorizing expungement, courts have granted motions to
expunge only in extreme circumstances, such as in cases involving flagrant constitutional
violations.”) (citations omitted). Plaintiff’s allegations come nowhere near satisfying the
foregoing standard.

                                                   7
both the complainant and the plaintiff and their contrasting versions of the events that unfolded on

December 25, 1989. In addition, the ROI describes collected evidence that was consistent with

the complainant’s accusations. This is not the situation where the officer-affiant failed to verify

crucial information about the particular crime, and the fact that Burke may have chosen to

summarize plaintiff’s statement rather than include it with the probable cause affidavit, as plaintiff

alleges, does not rise to the level of a constitutional violation. See, e.g., Liser, 254 F. Supp. 2d at

104 & n.5 (noting that “a material misstatement” contained in detective’s affidavit “does not, on its

own, permit the reasonable conclusion that defendant intentionally lied in that document”); see

also Frazier v. Williams, 620 F. Supp. 2d 103, 108 (D.D.C. 2009) (finding that detective facing

conflicting versions of assault by two “credible” persons had probable cause to arrest either

person, and “[g]iven all the facts and circumstances, . . . . acted reasonably in concluding that

probable cause existed to justify the issuance of an arrest warrant” for the plaintiff). Hence, the

federal claim against Burke is dismissed. 6




5
      Plaintiff has not provided the actual affidavit supporting the arrest warrant. Given the
statement in the ROI that “the facts of this case were presented, in the form of an AFFIDAVIT IN
SUPPORT OF AN ARREST WARRANT, to a Judge of the Superior Court for the District of
Columbia.,” ROI at 10 (capitalization in original), it is reasonably safe to conclude that the
statements supporting the probable cause affidavit mirrored those comprising the ROI.
6
        Given the ROI’s content, it is most likely that Burke would be shielded by qualified
immunity even if he were to appear in this case. See Liser v. Smith, 254 F. Supp. 2d 89, 104
(D.D.C. 2003) (“In contrast to the subjective ‘good faith’ standard that governs false arrest claims
under D.C. law . . ., the federal qualified immunity standard is an objective one” and “police
officers are shielded from civil damages liability ‘as long as their actions could reasonably have
been thought consistent with the rights they are alleged to have violated.”) (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)).


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                                        CONCLUSION

       For the reasons discussed above, plaintiff’s federal claim against the District of Columbia

and former MPD Detective John Burke is dismissed. In accordance with 28 U.S.C. § 1367(c)(3),

the Court declines to exercise supplemental jurisdiction over any common law claims. A separate

Order accompanies this Memorandum Opinion.


                                                    ________/s/____________
                                                    RUDOLPH CONTRERAS
                                                    United States District Judge
Date: August 25, 2014




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