                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 DONALD L. SMITH,

         Plaintiff,
                 v.                                          Civil Action No. 08-1630 (JDB)
 DISTRICT OF COLUMBIA, et al.,

         Defendants.


                                   MEMORANDUM OPINION

        Plaintiff Donald Smith brings this action against the District of Columbia, Officer Travis

Eagan, and three other unknown but named officers ("John Does 1-3") alleging a violation of his

Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Now before the Court

is defendant District of Columbia's (the "District") motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). As grounds for its motion, the District argues that Smith's claim is

barred by the doctrine of res judicata. In response, Smith asserts that because he did not receive

a full and fair opportunity to litigate his constitutional claim in state court, res judicata does not

apply. The Court concludes that Smith's federal claim would be precluded under the relevant

state law and the prior state court proceedings were not constitutionally inadequate, and hence

res judicata applies. The District's motion to dismiss will therefore be granted.

                                          BACKGROUND

        On February 16, 2006, Smith, a regular customer of PNC Bank on 14th Street, N.W. in

the District of Columbia, walked towards the bank to speak with a manager. Am. Compl. ¶¶ 10-

12. As he was walking, Smith saw police cruisers speeding toward the bank and witnessed

Eagan and John Does 1-3, officers of the D.C. Metropolitan Police Department ("MPD"),
approach and search the area. Id. ¶ 13. A bank robbery had occurred, and a suspect whose

description did not match Smith's had fled the scene. Id. ¶¶ 14-15. Smith walked around the

police cruisers and waited at a pharmacy nearby, watching the MPD investigate. Id. ¶¶ 16-18.

Fifteen to twenty minutes later, Smith walked back toward the bank, again passing by the police

cruisers. Id. ¶¶ 18-19. Then, according to Smith, Eagan and John Doe 1 tackled him from

behind, choked him, and searched him without provocation or probable cause. Id. ¶¶ 20-23.

Smith further alleges that John Does 2 and 3 witnessed the choking and the search, but did not

object or attempt to prevent these actions. Id. ¶ 24. Smith asserts that Eagan and John Doe 1

then forcefully marched him to the bank, where employees identified him as a long time

customer. Id. ¶¶ 25-26. Despite the employees' identification, however, Eagan and John Doe 1

continued to hold Smith for an additional forty-five minutes. Id. ¶ 27.

       On March 6, 2006, Smith filed a complaint with the Office of Police Complaints ("OPC")

detailing these events. Id. ¶ 30. Smith's OPC complaint was dismissed on October 26, 2007. Id.

While his OPC complaint was still pending, on July 23, 2007, Smith filed a complaint in the

Superior Court of the District of Columbia relating to these events and named the MPD as a

defendant. District Mem. at 3. Following a motion to dismiss the complaint as non sui juris,

Smith amended his complaint on January 28, 2008, naming the District as the defendant. Id.

Smith's pro se complaint, in its entirety, states

       [t]he District of Columbia Government (via its Metropolitan Police Department)
       wrongfully detained me and choked me without any probable case [sic]1 on


       1
          Smith's handwritten pro se complaint references "probable case," a phrase that Smith
argues should be construed as "probable cause." District Ex. 1; Smith Opp'n at 5. While the
District contends that the phrase should be interpreted as written, District Reply at 3, the
Superior Court understood Smith's complaint to read "probable cause." District Ex. 2. The

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        2/16/2006. As a direct and proximate result of defendant's wrongful act(s), I
        suffered physical and mental injury, emotional distress and anxiety in the amt of
        $20,000.00. Under section 12-309 of the D.C. Code, I filed a complaint with the
        D.C. Office of Risk Management on 8/11/2006 and they never responded. This
        gave Defendant notice within the statutorily required six months.

District Ex. 1.

        On March 11, 2008, the District filed another motion to dismiss, this time arguing that

Smith's claims were barred by the one-year statue of limitations for assault and battery. District

Mem. at 3. The Superior Court granted the District's motion to dismiss on April 22, 2008,

determining that Smith's claims sounded "in assault and battery and false arrest or false

imprisonment" and finding that Smith filed his complaint five months beyond the statute of

limitations for these common law torts. District Ex. 2. Smith did not appeal this decision.

District Reply at 4. Instead, on September 19, 2008, Smith, now represented by counsel, filed a

complaint in this Court against the District and four MPD officers pursuant to 42 U.S.C. § 1983

("section 1983"), alleging violations of his Fourth and Fourteenth Amendment rights.

        Now before the Court is the District's motion to dismiss. The District argues that the

dismissal of Smith's Superior Court complaint was a final judgment on the merits. District Mem.

at 5-6. Therefore, under the doctrine of res judicata, Smith is precluded from bringing the same

cause of action in federal court. Id. at 6-7. Smith responds that res judicata does not apply here

because the Superior Court, by failing to address his constitutional claim, deprived him of a full

and fair opportunity to litigate his section 1983 claim. Smith Opp'n at 3.




Court will defer to the Superior Court's interpretation for present purposes.

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                                       LEGAL STANDARD

        All that the Federal Rules of Civil Procedure require of a complaint is that it 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 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per curiam).

Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to

dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than

labels and conclusions" or "a formulaic recitation of the elements of a cause of action."

Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "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. ___, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Atherton v. District of Columbia Office

of the Mayor, --- F.3d ---, 2009 WL 1515373, at *6 (D.C. Cir. 2009). A complaint is plausible

on its face "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, 129 S. Ct. at 1949. This

amounts to a "two-pronged approach" under which a court first identifies the factual allegations

entitled to an assumption of truth and then determines "whether they plausibly give rise to an

entitlement to relief." Id. at 1950-51.

        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); see also Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to


                                                  -4-
dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should

be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &

Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968

(D.C. Cir. 1979); see also Erickson, 127 S. Ct. at 2200 (citing Twombly, 127 S. Ct. at 1965)).

The plaintiff must be given every favorable inference that may be drawn from the allegations of

fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d

1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI

Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal

conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct]

devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks

omitted); see also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4

(D.C. Cir. 2008) (explaining that the court has "never accepted legal conclusions cast in the form

of factual allegations").

                                         DISCUSSION

       The doctrine of res judicata precludes the relitigation of any claim that was or could have

been brought in a prior action resolved on the merits. Allen v. McCurry, 449 U.S. 90, 94 (1980).

Pursuant to 28 U.S.C. § 1738, federal courts must give state court judgments the same preclusive

effect as would be given by the courts of the state where the judgments emerged, including

judgments arising out of section 1983 claims. Migra v. Warren City Sch. Dist., 465 U.S. 75, 81

(1984). "A fundamental precept of common law adjudication," the doctrine of res judicata

protects against "expense and vexation attending multiple lawsuits, conserves judicial resources,


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and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions."

Montana v. United States, 440 U.S. 147, 153-54 (1979).

       However, a federal court can refuse to grant preclusive effect to a state court judgment if

the plaintiff was denied a full and fair opportunity to litigate in state court. Allen, 449 U.S. at

101; Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 n.22 (1982). To provide a full and fair

opportunity to litigate, a state court need only meet the "procedural requirements of due

process." Kremer, 456 U.S. at 482 n.24. Therefore, the applicability of res judicata in this case

involves a two-pronged analysis: (1) whether D.C. law would give the judgment of the Superior

Court preclusive effect, and (2) whether the Superior Court proceedings satisfy minimum due

process requirements. See id. at 481-82; Welch v. Johnson, 907 F.2d 714, 719 (7th Cir. 1990).

       Under D.C. preclusion law, "a final judgment on the merits of a claim bars relitigation in

a subsequent proceeding of the same claim between the same parties or their privies." Patton v.

Klein, 746 A.2d 866, 869 (D.C. 1999). "The doctrine [of res judicata] operates to bar in the

second action not only claims which were actually raised in the first, but also those arising out of

the same transaction which could have been raised." Id. at 870. A "common nucleus of facts,"

not the legal theory on which the plaintiff relies, defines the scope of a claim for res judicata

purposes. Id. In determining the applicability of res judicata, D.C. courts consider "(1) whether

the claim was adjudicated finally in the first action; (2) whether the present claim is the same as

the claim which was raised or which might have been raised in the prior proceeding; and (3)

whether the party against whom the plea is asserted was a party or in privity with a party in the

prior case." Id. A dismissal based on statute of limitations satisfies the first of this three-part

test. D.C. Super. Ct. R. 41(b) ("Unless the Court in its order for dismissal otherwise specifies, a


                                                  -6-
dismissal under this subdivision and any dismissal not provided for in this Rule, other than a

dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an

adjudication upon the merits.").

       Under the three-factor test used by D.C. courts, Smith's constitutional cause of action

would be precluded by the prior Superior Court judgment. First, the Superior Court's dismissal

of Smith's claims on statute of limitations grounds serves as a final judgment on the merits. See

D.C. Super. Ct. R. 41(b); District Mem. at 6. Second, Smith's section 1983 claim arises out of

the same "common nucleus of facts" -- his interaction with the MPD -- as his state common law

claims. District Mem. at 5. Although the parties disagree whether Smith's Superior Court

complaint raised a constitutional claim,2 that claim certainly could have been raised in the state

court proceeding, satisfying the second part of the test. See Patton, 746 A.2d at 869. Finally, the

District is "the party against whom" Smith asserted his claims both in Superior Court and in this

case. Am. Compl. ¶ 7; District Ex. 1. Therefore, D.C. law would give the Superior Court's

judgment preclusive effect.

       Nevertheless, Smith contends that he was denied a full and fair opportunity to litigate his

constitutional claim in Superior Court, and that this denial shields him from a dismissal of his

federal claim under the doctrine of res judicata. Smith Opp'n at 7. In particular, Smith argues

that the Superior Court failed to acknowledge his federal constitutional claim because it based its

dismissal on the statute of limitations for common law torts. Id. at 8. According to Smith, the


       2
         The District argues that, consistent with the Superior Court's opinion, Smith's sparse
Superior Court complaint never raised a constitutional issue. District Reply at 2-3. In response,
Smith argues that the phrase "wrongfully detained me and choked me without any probable
[cause]" invokes a violation of his Fourth and Fourteenth Amendment rights. Smith Opp'n at 5.
Because the Court will consider both scenarios, it need not resolve this disagreement.

                                                 -7-
phrase "wrongfully detained me and choked me without probable [cause]" raises a constitutional

claim. Id. at 5. However, the Supreme Court in Kremer v. Chemical Construction Corp. made

clear that to provide a full and fair opportunity to litigate, "state proceedings need do no more

than satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process

Clause." 456 U.S. at 481. In this case, there is no indication that the Superior Court procedures

were constitutionally deficient. While the Superior Court's decision did not allude to Smith's

constitutional claim, "[c]ourts' opinions typically address explicitly only those contentions they

believe are substantial enough to warrant such treatment [and] state courts' opinions' failure to

mention plaintiff's federal constitutional arguments means only that those courts did not consider

the arguments substantial." Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993); see also Winters

v. Lavine, 574 F.2d 46, 61 (2d Cir. 1978) ("[I]t is entirely possible for a court to consider and

reject a particular claim presented to it without any express discussion of or allusion to that

claim."); Sparks v. Kim, No. 4:98-0134, 1998 WL 911832, at *4 (N.D. Miss. Nov. 30, 1998)

(citing Clark and noting that despite no explicit acknowledgment of plaintiff's federal

constitutional claims in state court, res judicata applies). Hence, even assuming that Smith

raised a constitutional claim by referencing probable cause, the Superior Court's failure to

mention that claim does not establish the requisite lack of due process needed to defeat a res

judicata defense.3


       3
          Smith relies on a passage from Allen v. McCurry, where the Supreme Court in dictum
mentions that a failure to "even acknowledge the existence of a constitutional principle" "might
well support an exception to res judicata." 449 U.S. 90, 101 (1980). In practice, courts have
applied this standard infrequently and only in materially different factual situations from the
present case. See, e.g., Wade v. Brady, 460 F. Supp. 2d 226, 233, 241 (D. Mass. 2006) (rejecting
a collateral estoppel defense when an inmate's due process claim was dismissed at the trial and
appellate level with no comment); Schneider v. Colegio de Agogados de Puerto Rico, 546 F.

                                                 -8-
       Finally, Smith failed to appeal the Superior Court's dismissal of his claims within the

D.C. court system. District Reply at 4. A plaintiff's failure "to avail himself of the full

procedures provided by state law does not constitute a sign of their inadequacy." Kremer, 456

U.S. at 485, see also Lolling v. Patterson, 966 F.2d 230, 236 (7th Cir. 1992) (A plaintiff "cannot

argue that he was not provided a full and fair opportunity to litigate the claim where he failed to

properly seek appellate review."); Sparks, 1998 WL 911832, at *5 ("If plaintiff's counsel was

concerned that the state court had not addressed the federal claims, counsel had available the

mechanisms of" additional state court procedures.). Here, Smith could have appealed the

Superior Court's dismissal of his complaint and argued that his constitutional claim had been

improperly ignored. His failure to do so, however, does not signal the constitutional inadequacy

of the Superior Court proceedings nor does it provide a shield from the preclusive effect of the

Superior Court's judgment. Therefore, the Court will grant the District's motion to dismiss and

the District will be dismissed from this case as a party defendant.




Supp. 1251, 1270, 1273 (D.P.R. 1982) (finding the Puerto Rico court unwilling to protect federal
rights when plaintiffs explicitly asked to reserve their federal claims and the Puerto Rico court
decision ignored this request and plaintiffs' federal claims); Farmer v. Lane, 864 F.2d 473, 477-
78 (7th Cir. 1988) (finding collateral estoppel does not apply where state courts applied only
state, not federal, constitutional law at multiple state court levels regarding plaintiff's due process
claims).

                                                  -9-
                                        CONCLUSION

       The doctrine of res judicata precludes Smith's section 1983 claim against the District in

this case and, accordingly, the Court will grant the District's motion to dismiss. A separate Order

accompanies this Memorandum Opinion.




                                                            /s/
                                                    JOHN D. BATES
                                                United States District Judge

Dated: June 29, 2009




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