                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
PIERRE BOSTIC,                )
                              )
          Plaintiff,          )
                              )
     v.                       )        Civil Action No. 07-1383 (EGS)
                              )
UNITED STATES                 )
CAPITOL POLICE, et al.,       )
                              )
          Defendants.         )
______________________________)

                         MEMORANDUM OPINION

     Pierre Bostic filed this action in response to the events of

February 14-16, 2004, during which he was arrested by Daryl Banks

of the United States Capitol Police and incarcerated for two days

before being released.   Bostic’s claims include:    false arrest,

false imprisonment, assault, battery, intentional infliction of

emotional distress, and negligence.     The District of Columbia and

the federal defendants move to dismiss, or in the alternative,

move for summary judgment.   For the reasons stated below, both

motions to dismiss will be GRANTED.

I.   BACKGROUND

     On February 14, 2004, Daryl Banks, a Technician of the

United States Capitol Police, pulled over a vehicle driven by

Pierre Bostic.    See Federal Defs.’ Statement of Material Facts




                                 -1-
Not in Dispute (“Statement”) [Dkt #30-2] at ¶ 1.1      The basis for

the vehicle stop was failure to properly display tags on the

front of the vehicle.     Statement at ¶ 1.    Banks reviewed Bostic’s

license and registration and called the dispatcher to run a

WALES/NCIC check.2    Statement at ¶ 4.   The WALES report indicated

that Bostic’s license was suspended.      Statement at ¶ 4.

     Banks returned to the vehicle and told Bostic that his

license was suspended.     Statement at ¶ 8.    Bostic denied that his

license was suspended.     Statement at ¶ 9.    Nevertheless, Banks

arrested Bostic, handcuffed him, and put him into the vehicle of

another officer.     Statement at ¶ 10, 12.    Bostic bumped his head

on the car’s roof while entering the vehicle, but did not inform

either officer that he bumped his head.       Statement at ¶ 12.

     Bostic remained in custody for the following two nights

because he was on probation for a previous charge at the time of

the arrest.   Statement at ¶ 16.    On Monday, February 16, 2004,

Bostic appeared in court.     Statement at ¶ 18.    The Judge


     1
        Bostic’s statement of material facts in dispute, see
[Dkt. #34 at 8-9, 35 at 6], did not directly or indirectly
controvert the statements in the Federal Defendants’ statement of
undisputed material facts, see [Dkt. #30-2]. Accordingly, the
facts identified by the Federal Defendants, to the extent that
they are inconsistent with the facts in the complaint, are deemed
conceded. LCvR 7(h).
     2
        The Washington Area Law Enforcement System (“WALES”) is a
database that contains criminal information and is used by law
enforcement officers to run checks on car licenses, drivers’
licenses and warrants. Federal Defs.’ Mot., Declaration of
Sergeant Evelyn Settle [Dkt. #30-13 at ¶ 2].

                                   -2-
dismissed the case against Bostic because the Department of Motor

Vehicles stated that Bostic’s license was not suspended.

Statement at ¶ 18.

      As a result of the events of February 14-16, 2004, Bostic

alleges that he suffered “physical injuries, personal and

permanent emotional distress and [that he] will continue to

suffer extreme emotional and mental anguish, anxiety and

humiliation.”   Complaint [Dkt #1 at ¶ 15].   Bostic’s only

complaint of physical injury, however, was that he had little

scratches on his wrist and a bump on his head.    Statement at ¶

19.   He did not seek medical treatment for the bump or scratches

because he considered the injuries “minor.”    Statement at ¶ 19.

In addition to his alleged injuries, Bostic alleges that he “has

lost income, incurred medial expenses and legal fees.”    Complaint

[Dkt #1 at ¶ 15].    Bostic did not, however, incur any medical

expenses or lose any income as a result of his arrest and two

night incarceration as he did not seek medical treatment and he

was unemployed at the time of the incident.    Statement at ¶ 20-

21.   Bostic alleges emotional injuries of “(1) feeling bothered

whenever he sees police; (2) spending Valentine’s Day weekend in

jail; (3) not being able to take his daughter to the Ice Capades

on Valentine’s Day weekend; and (4) feeling as if his rights have

been taken away from him.”    Statement at ¶ 22 (citing Bostic’s

deposition).


                                 -3-
      Bostic seeks attorney fees, compensatory damages in the

amount of $1,000,000, and punitive damages in the amount of

$1,000,000.    Complaint [Dkt #1].

II.   DISTRICT OF COLUMBIA’S MOTION

      The District of Columbia contends that Bostic’s claims

should be dismissed for failure to state a claim upon which

relief can be granted because Bostic’s claim is barred by the

doctrine of res judicata and/or barred by the statute of

limitations.    In the alternative, the District of Columbia moves

for summary judgment.

      To survive a motion to dismiss a complaint for failure to

state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12 (b)(6), a plaintiff must make

sufficiently detailed factual allegations in her complaint.      See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).      The

allegations must “raise a right to relief above the speculative

level.”   Id. (citation omitted).     “In evaluating a Rule 12(b)(6)

motion, the Court must accept as true all of the factual

allegations contained in the complaint and grant the plaintiff

the benefit of all inferences that can be derived from the facts

alleged.”   Eleson v. United States, 518 F. Supp. 2d 279, 282

(D.D.C. 2007) (internal citations and quotation marks omitted).

“However, ‘a plaintiff’s obligation to provide the grounds of his

entitlement to relief [in his complaint] requires more than


                                 -4-
labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.’”       Id. (quoting

Twombly, 550 U.S. at 555).    The Court is “not bound to accept as

true a legal conclusion couched as a factual allegation” when

considering a motion to dismiss.        Trudeau v. Fed. Trade Comm’n,

456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)).

     “Under the doctrine of res judicata, or claim preclusion, a

subsequent lawsuit will be barred if there has been prior

litigation (1) involving the same claims or cause of action, (2)

between the same parties or their privies, and (3) there has been

a final, valid judgment on the merits, (4) by a court of

competent jurisdiction.”     Smalls v. United States, 471 F.3d 186,

192 (D.C. Cir. 2006) (citing Blonder-Tongue Labs., Inc. v. Univ.

of Ill. Found., 402 U.S. 313, 323-24 (1971)).

     Bostic’s claim arose on February 14, 2004 when he was

arrested by Banks.   On August 30, 2004, Bostic filed a lawsuit

against the District of Columbia in the District of Columbia

Superior Court.   That lawsuit involved the same parties and was

derived from the same transaction, or series of connected

transactions as the current lawsuit.       The complaints are

virtually identical, with the exception that in the current

lawsuit Bostic brings the claims under section 1983 and pleads a

claim of negligence.   All of Bostic’s claims arose out of the


                                  -5-
same set of facts, however, and therefore Bostic could have, and

should have, brought the claims in his first suit in Superior

Court.    See Advantage Health Plan, Inc. v. Knight, 139 F. Supp.

2d 108, 110 (D.D.C. 2001).

       The lawsuit filed in Superior Court resulted in a final

judgment which precludes the relitigation of the claims in this

Court.    The Superior Court dismissed the suit against the

District of Columbia on December 8, 2004 because Banks was not an

employee of the District of Columbia and therefore the District

of Columbia could not be held liable for his tortuous acts.      See

District of Columbia’s Motion, Exhibit #2 [Dkt. #26-2].    The

District of Columbia Court of Appeals affirmed that decision in

August 2006.    Because the Superior Court clearly intended to

terminate all proceedings as to Bostic’s claims, Bostic’s current

suit against the District of Columbia is barred by the doctrine

of res judicata.    See Dyer v. William S. Bergman & Assocs., Inc.,

635 A.2d 1285, 1287 (D.C. 1993) (a final order disposes of the

whole case on the merits and leaves the court with nothing left

to do but execute the judgment).

III.    UNITED STATES OF AMERICA’S MOTION

       The federal defendants assert that this Court lacks subject

matter jurisdiction over Bostic’s claims because the Federal Tort

Claims Act does not waive the federal government’s sovereign

immunity for constitutional tort claims or for claims related to


                                 -6-
the government’s discretionary functions.   The federal defendants

further argue that Bostic failed to state a claim for false

arrest, false imprisonment, assault, battery, intentional

infliction of emotional distress, and negligence.   In the

alternative, the federal defendants move for summary judgment.

     It is well-settled that, as sovereign, the federal

government is subject to suit only insofar as it has consented to

suit.   F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a

waiver, sovereign immunity shields the Federal Government and its

agencies from suit.”).   With certain exceptions, the federal

government has consented to suit under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680, for acts

or omissions that would constitute torts at common law. 28 U.S.C.

§ 2674.

     Bostic’s suit attempts to hold the federal government liable

for a violation of his “federal civil rights under the Fourth

Amendment to the United States’ Constitution.”   Complaint Dkt. #1

at ¶ 1.   He does not point to any authority that suggests the

federal government has waived its immunity for such a claim,

though, and indeed, the Supreme Court has already concluded that

the federal government has not rendered itself liable for

constitutional tort claims.   F.D.I.C., 510 U.S. at 478.

Accordingly, this Court lacks subject matter jurisdiction over

Bostic’s claims against the United States, the United States


                                -7-
Capitol Police, and Daryl Banks3 in his official capacity as

Technician.

      Bostic’s claims for negligent training and supervision are

also barred for lack of subject matter jurisdiction.    The federal

government has not waived immunity for claims that arise out of

discretionary functions.   Sloan v. U.S. Dept. of Housing and

Urban Dev., 236 F.3d 756 (D.C. Cir. 2001) (the district court

lacks subject matter jurisdiction over any claim “‘based upon the

exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or

an employee of the Government, whether or not the discretion

involved be abused.’” (quoting 28 U.S.C. § 2680(a))).   The

defendants’ training and supervision of employees is exactly the

kind of discretionary function that is not subject to judicial

second-guessing.   See Daisley v. Riggs Bank, N.A., 372 F. Supp.

2d 61, 81-82 (D.D.C. 2005).   Accordingly, this Court lacks

subject matter jurisdiction over Bostic’s negligence claims.      See

id.

      Even if this Court had jurisdiction over Bostic’s claims,

the claims would be dismissed for failure to state a claim upon



      3
        Banks is entitled to immunity in any event for actions
taken in his official capacity because he was acting within the
scope of his federal employment. See 28 U.S.C. § 2679(d)(1); see
also Federal Defs.’ Mot., Certification Dkt. #30-12 (certifying
that Banks was acting within the scope of his employment). Thus,
the United States of America is substituted as a defendant.

                                -8-
which relief can be granted because Bostic failed to plead even

the most basic elements of these causes of action.    See Fed. R.

Civ. P. 12(b)(6).   It is undisputed that Banks had probable cause

to stop Bostic’s vehicle for improperly displayed tags and to

arrest Bostic after the WALES report indicated that his license

was suspended.    Bostic admits that Banks could not have ignored

the WALES report and relied on Bostic’s own contention that his

license was not suspended.   Furthermore, Bostic’s arrest was

proper because he was on probation and his incarceration was not

unreasonable considering his arrest on Saturday and the next

available court date on Monday.    Accordingly, Bostic was not

unlawfully restrained and thus has no claim of false arrest or

false imprisonment.    See Edwards v. Okie Dokie, Inc., 473 F.

Supp. 2d 31, 44 (D.D.C. 2007) (elements of false arrest and false

imprisonment are the same and include the unlawfulness of the

restraint).

     Bostic has not set forth any evidence that he was assaulted.

See Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C.

2007) (defining assault and battery and explaining that a police

office has a qualified privilege to use reasonable force to

effect an arrest so long as the means are not in excess of what

the officer reasonably believes is necessary under the

circumstances).   The only physical injuries Bostic complains of

are a bump on his head and scratches on his wrist, which he


                                  -9-
describes as “minor” injuries that did not necessitate medical

attention.   Bostic does not allege any unreasonable behavior on

the part of Banks or any other law enforcement officer.

Regarding Bostic’s claim of emotional distress, the defendants

admit that Bostic’s arrest and two day incarceration were likely

distressing, but Bostic has not plead any facts that would

suggest he has suffered “severe” emotional distress or that the

defendants’ conduct was extreme or outrageous.    See Browning v.

Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002) (intentional

infliction of emotional distress involves conduct 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.”   (internal

quotations omitted)).

     Regarding Bostic’s negligence claims, he failed to state a

claim upon which relief could be granted.   Bostic’s claim focuses

exclusively on the inaccurate WALES report, but does not allege

that the federal defendants were responsible for the inaccurate

report or that they could have, or should have, done anything to

avoid the situation that led to this lawsuit.    In the end, Bostic

has not alleged any negligence on the part of the federal

defendants and has therefore failed to state a claim.

     To the extent that Bostic alleges a Bivens claim against

Banks in his individual capacity, Banks is entitled to qualified


                               -10-
immunity.    “[G]overnment officials performing discretionary

functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”    Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).    Banks’ vehicle stop and arrest of Bostic was well within

the reasonableness standard of the Fourth Amendment and therefore

Banks could not have known he was violating a clearly established

constitutional right; indeed, no constitutional right was

violated.

IV. CONCLUSION

     For the foregoing reasons, the District of Columbia’s motion

to dismiss and the federal defendants’ motion to dismiss will be

GRANTED.    An appropriate Order accompanies this Memorandum

Opinion.


Signed:     Emmet G. Sullivan
            United States District Judge
            August 6, 2009




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