                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


KIMBERLY MCCAIN,

               Plaintiff,

       v.                                               Civil Action No. 13-1589 (GK)

DISTRICT OF COLUMBIA, et al.,

              Defendants.


                                    MEMORANDUM OPINION

       Plaintiff Kimberly McCain                      ("Plaintiff" or "McCain")                  brings

this    action against            the     District       of    Columbia       ("the       District")

and Metropolitan Police Department                           ("MPD")    Officers Kelvin King

("Officer        King")           and       Richard           Moats       ("Officer             Moats")

(collectively,        "Defendants")              for    negligence,          gross       negligence,

negligent       supervision,              intentional           infliction          of     emotional

distress,      and violations             of her        constitutional         rights       pursuant

to 42 U.S.C. § 1983.

       This matter          is    before        the    Court    on     Defendants'        Motion      to

Dismiss       [Dkt.   No.         4].       Upon       consideration          of     the        Motion,

Plaintiff's Opposition [Dkt. No.                       7],    Defendants'      Reply [Dkt. No.

8] '    Plaintiff's          Supplemental               Opposition           [Dkt.        No.      10] '

Defendants'      Response          to     the    Supplemental          Opposition         [ Dkt.    No.

11], Defendants' Notice to the Court dated August 14, 2014                                         [Dkt.

No.    14],    and    the        entire    record       herein,        and    for    the        reasons
stated below,         Defendants'   Motion     shall       be granted in part and

denied in part.

I.     BACKGROUND

       A.        Factual Background1

       On July 12, 2009,       Plaintiff was arrested in the District of

Columbia     for     drunk driving.      Amended Complaint            ("Am.      Compl. ")

~~ 8-9. 2    After failing a series of field sobriety tests, she was

taken to "a police substation" where she was twice administered

a    breath alcohol      test using a        machine       known as   an   Intoxilyzer

5000EN      ("Intoxilyzer").           Id.     ~~     8-10.       The      results      of

Plaintiff's        Intoxilyzer tests were           0.34   and 0.37 grams per 210

liters      of     breath,   respectively,      indicating        that     her     breath



1
  The facts are taken from the Amended Complaint [Dkt. No. 1-2],
documents incorporated by reference in the Amended Complaint,
and facts of which the Court may take judicial notice.    See Abhe
& Svoboda,  Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)
("In determining whether a complaint states a claim, the court
may consider the facts alleged in the complaint, documents
attached thereto or incorporated therein, and matters of which
it   may  take   judicial  notice.")   ( citation omitted) . ·  In
particular, the Court takes judicial notice of the docket in
Plaintiff's criminal case, District of Columbia v. McCain, No.
2009 CTF 016013 (D.C. Super. Ct. July 23, 2009) ("McCain Crim.
Dkt.").   See Rogers v. District of Columbia, 880 F. Supp. 2d
163, 166 (D. D.C. 2012) (" [D]ocket sheets are public records of
which the Court can take judicial notice[.]") (citing Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).   A copy of the
McCain criminal docket is attached as Exhibit 1 to Defendants'
August 14, 2014, Notice [Dkt. No. 14].
2
  The Amended Complaint erroneously states that Plaintiff was
arrested on December 7, 2008, but the parties agree that she was
actually arrested on July 12, 2009.  See Pl.'s Opp'n at 1.


                                         -2-
alcohol level was more than four times the legal limit.                                                     Id.    <JI




          The         District          charged        Plaintiff            with         three        criminal

offenses:              ( 1)     Driving While          Intoxicated               ( "DWI") ,    in violation

of D.C.          Code §         50-2201.05(b) (1) (A) (i) (I);                   (2)    Driving Under the

Influence                    ("DUI"),      in      violation                of         D.C.         Code      50-

2201.05 (b) (1) (A) (i) (II);                   and      ( 3)        Operating           While        Impaired

    ( "OWI") ,    in violation of D.C.                 Code §          50-2201. 05 (b) ( 2) (A) .             See

Am.      Compl.        <JI    16;   see    also McCain Crim.                 Dkt.       at    entries       dated

July 23, 2009.

          Under the             impaired driving           laws        in effect at            the     time       of

Plaintiff's                  arrest,      the    DUI     and         OWI     charges          required        the

prosecution to prove that,                        as a       result of alcohol consumption,

she was          "less able,            either mentally or physically or both,                                    to

exercise           the         clear      judgment       and         steady        hand       necessary           to

[operate          a    vehicle]         with    safety          to    [her] self         or    the    public."

Karamychev v.                  District of Columbia,                 772 A.2d 806,             812-13       (D.C.

2001)            (citation          omitted);          see           also        D.C.        Code     §§      50-

2201.05 (b) (1) (A) (i) (II);                   50-2201.05 (b) (2)                 (2009).            The     DWI

charge,          by contrast,           required the prosecution to prove only that




3
   D.C.       Code § 50-2201.05, which was the operative impaired
driving       provision at the time of Plaintiff's arrest, prohibited
driving      with an alcohol level at or exceeding .08 grams per 210
liters       of breath.    See D.C. Code § 50-2201.05(b) (1) (A) (i) (I)
(2009).
                                                       -3-
Plaintiff's alcohol levels exceeded .08 grams per 210 liters of

breath.     See id.    §   50-2201.05 (b) (1) (A) (i) (I).

       Plaintiff was advised by her attorney that her Intoxilyzer

results     could    not     be    successfully             challenged        in    court,       and,

consequently,        on October 1,             2009,       she pled guilty to the DWI

charge.     Am. Compl. 1 17; see also McCain Crim.                               Dkt. at entries

dated Oct.     1,    2009.        On October 8,             2009,    she was sentenced to

ten    mandatory      days        in     jail,        a    28-day     residential           alcohol

treatment     program,       $400       in     fees       and    fines,     and     one    year    of

supervised probation.              Id. 1 18; see also McCain Crim.                          Dkt. at

entry dated Oct. 8, 2009. 4

       On   July     26,     2010,        after           serving     her        jail     time    and

satisfying     all    of     the       terms     and      conditions        of    her     sentence,

Plaintiff received a notice from the District of Columbia Office

of    the Attorney General              ("OAG notice")              advising her          that    the

Intoxilyzer machine used to test her breath alcohol                                       levels on

July 12, 2009, had not been properly maintained and calibrated.

Am. Compl. 11 19, 23.              In particular, the OAG notice appears to

have    alerted      Plaintiff,          as    she        alleges     in     this       case,    that

Defendant Officer King,                who was responsible for maintaining the

Intoxilyzer     machines          for    the     Metropolitan              Police       Department,

used      "out-dated,        deteriorated,                 and      uncertified           simulator

4
  As a result of her conviction, Plaintiff was also terminated
from her employment as an Emergency Technician with the District
of Columbia. Am. Compl. 1 22.
                                                -4-
solutions"      to    calibrate                the    machines               and    failed        to    test     the

machines       every         three               months,        in            accordance               with      the

manufacturer's specifications.                           Id.   <][<][    38-41.        Plaintiff alleges

that the "forensically invalid and unscientific procedures" used

by Officer King to calibrate and maintain the machines "resulted

in    inaccurate,          forensically               invalid            and       inflated        Intoxilyzer

readings,      which rendered                  [her]     breath test results invalid and

inaccurate."         Id.     <][<][      40, 45.

       In addition,          she          claims       that the District                    knew,       at     least

two    years    prior        to           issuance       of     the           OAG     notice,           that     its

Intoxilyzer machines were not properly maintained but failed to

"take any corrective action" until                               February 26,                2010,       when it

"began advising judges that MPD lacked confidence in its breath

test results."         Id.      <][<][    52, 53, 56.

      On    December         6,          2013,       Plaintiff               filed    a     motion        in     the

Superior Court to withdraw her guilty plea and set aside the DWI

conviction.      See McCain Crim.                      Dkt. at entry dated Dec.                          6,    2013.

On February 21, 2014, the Superior Court granted that motion and

reinstated all of the original criminal charges,                                                 including the

DUI   and OWI charges.                     See    Pl.'s Supp.                Opp'n,        Ex.    1 ·(Sup.       Ct.

Order dated Feb. 21, 2014)                       [Dkt. No. 10].                    On June 24, 2014, the

reinstated      criminal              case       proceeded              to     a    bench        trial        before

Magistrate      Judge        Rainey            Brandt.           See          McCain        Crim.        Dkt.     at

entries     dated      June              24,     2014.         On        July        24,     2014,        at     the

                                                       -5-
conclusion of that trial,                 the DWI and OWI charges were dismissed

by the       prosecution         nolle     prosequi       and Magistrate            Judge    Brandt

found Plaintiff guilty on the sole remaining charge of DUI.                                        See

McCain Crim. Dkt. at entries dated July 24, 2014.

        B.     Procedural Background

        On July 24, 2013, exactly one year before the conclusion of

Plaintiff's         reinstated       criminal           case,    she     filed       this        civil

action in the Superior Court of the                         District of Columbia.                   On

October      17,    2013,    Defendants           removed       the    case    to    this    Court

[Dkt.    No.   1]    and on October              24,    2013,    they    filed      the     instant

Motion to Dismiss           [Dkt. No.       4].        On November 14, 2013,           Plaintiff

filed    her Opposition            [Dkt.    No.    7], 5 and on November 25,                     2013,

Defendants filed their Reply [Dkt. No. 8].

        Thereafter,         on     February        2 4,    2014,       Plaintiff          filed      a

Supplemental Opposition with information as to the status of her

motion to withdraw her guilty plea in the Superior Court                                         [Dkt.

No. 10 at 1-5].         On March 6, 2014, the District filed a Response

to   Plaintiff's      Supplemental              Opposition      [Dkt.    No.     11]      and,     the

same    day,   Plaintiff          filed     a    Reply    to    the    District's         Response

5
  On December 4, 2013, Plaintiff also filed a Request for Oral
Argument [Dkt. No. 9], on the asserted basis that Defendants'
Reply   brief  "raised  matters   unaddressed"  in  her  initial
Opposition.   Because Plaintiff was subsequently permitted to
file both a Supplemental Opposition [Dkt. No. 10] and a Reply to
the District's Response to her Supplemental Opposition [Dkt. No.
12] , and because the Court concludes that resolution of the
instant Motion is appropriate without oral argument, Plaintiff's
Request is denied.

                                                 -6-
[Dkt.    No.    12].        On August 14,           2014,       Defendants filed a Notice

regarding       the     final      disposition           of    Plaintiff's           criminal            case

[Dkt. No. 14 at 2].

II.     STANDARD OF REVIEW

        To    survive       a    motion      to     dismiss       under       Rule       12(b) (6),         a

plaintiff       need    only       plead     "enough          facts     to    state       a    claim       to

relief that is plausible on its face"                             and to "nudge []                 [his or

her]    claims        across      the      line     from      conceivable           to    plausible."

Bell    Atlantic        Corp.       v.     Twombly,        550        U.S.    544,       570        (2007).

"[O]nce a claim has been stated adequately,                                  it may be supported

by showing any set of facts consistent with the allegations in

the complaint."             Id. at 563.

        Under the Twombly standard,                      a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success . . .                  [,] must assume all the allegations in

the complaint are true                  (even if doubtful in fact)                                 [,    and]

must give the plaintiff the benefit of all reasonable inferences

derived       from    the       facts    alleged."            Aktieselskabet             AF    21.       Nov.

2001    v.     Fame    Jeans       Inc.,      525       F.3d     8,     17     (D.C.      Cir.          2008)

(internal quotation marks and citations omitted) .                                       A complaint

will not suffice,               however,     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)

(alteration in Iqbal) .

                                                  -7-
III. ANALYSIS

        Defendants seek dismissal of Plaintiff's Amended Complaint

on   three    grounds.           First,      they      argue        that           her   claims      are

untimely.      Second, they contend that Counts I-III, each of which

assert      common    law       tort    claims,        must         be        dismissed          because

Plaintiff failed to comply with the District's mandatory notice

statute,     D.C. Code      §    12-309.         Third,   they argue that Count IV,

which      asserts    a    cause       of   action        under          42        U.S.C.    §     1983,

constitutes      a        collateral        attack        on        Plaintiff's              criminal

conviction     and,       therefore,        is    barred       by    the           Supreme       Court's

decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994).

      A.     Counts I-III Shall Be Dismissed for Failure to Satisfy
             D.C. Code § 12-309

        The parties agree that Plaintiff's common law tort claims

in   Counts . I-III 6      are     subject        to   D.C.     Code           §     12-309,       which

provides:

      An action may not be maintained against the District.
      of Columbia for unliquidated damages to person or
      property unless, within six months after the injury or
      damage was sustained, the claimant, his agent, or
      attorney has given notice in writing to the Mayor of
      the District of Columbia of the approximate time,
      place, cause, and circumstances of the injury or
      damage.    A report in writing by the Metropolitan
      Police Department, in the regular course of duty, is a
      sufficient notice under this section.

6
  Count I is a claim for negligence and gross negligence against
all Defendants.   Am. Compl. «JJ«JJ 62-73. Count II is a claim for
negligent supervision against the District.      Id. «JJ«JJ 7 4-8 0. Count
III is a claim for intentional infliction of emotional distress
against Officer King and Officer Moats.    Id. «JJ«JJ 81-84.
                                             -8-
         D.C. Code         §    12-309.

         The    notice          requirements          in    Section     12-309       "serve      several

important purposes:                   they    (1) permit the District of Columbia to

conduct an early investigation into the facts and circumstances

surrounding           a        claim,     (2)        protect     the     District      of       Columbia

against unreasonable claims, and (3) encourage prompt settlement

of meritorious claims."                         Owens v.       Dist.    of Columbia,            993 A. 2d

1085,     1088        (D.C.       2010)         (citations       omitted).           The     Court    of

Appeals        for    the       District of Columbia has                  therefore         repeatBdly

held      that       compliance              with      S€ction     12-309       is     a    mandatory

"condition precedent to filing suit against the District[,]" and

"is to be construed narrowly against claimants."                                     Id.    (citations

and quotation marks omitted) . 7

         Plaintiff concedes that she never filed a writtBn notice of

h€r claims with th€ Mayor of the District of Columbia.                                             Pl.'s

Opp' n    at     7-8.           She     relies       instead     on     the    final    sentence      of

Section 12-309, which states that "[a]                             rBport in writing by the

Metropolitan Police Department,                            in the regular course of duty,

is a sufficient notice under this section."                                   D.C. Cod€     §    12-309.

She points to two types of MPD "reports" she contends provided

notice     of        her       claims:        ( 1)    the      police     reports      preparBd       in

7
  Section 12-309 does not, however, apply to claims under 42
U.S.C. § 1983.  See Brown v. United States, 742 F.2d 1498, 1509-
10 (D.C. Cir. 1984)    (en bane), cert. denied, 471 U.S. 1073
(1985).
                                                      -9-
connection with her July                   12~   2009, arrest for drunk driving, and

( 2)    reports    allegedly prepared by MPD                         in connection with             its

investigation       into        the    Intoxilyzer            problems        in    2010.      Pl.'s

Opp'n at 7.

        It is well-established that the mere "existence of a police

report              'does not necessarily mean that the District has

received     the     actual           notice          which    §     12-309        contemplates.'"

Martin v.     District of Columbia,                    720 F.       Supp.   2d 19,     25    (D.D.C.

2010)     (citing Allen v. District of Columbia, 533 A.2d 1259, 1262

(D.C.     1987)).         This        is     especially            true   where,      as    here,     a

plaintiff's civil case asserts claims                              such as     false       arrest or

malicious     prosecution.                 See Allen,         533 A. 2d at          1263    (holding

that "a police report of an arrest is presumptively devoid of

any notice of a potential claim of injury or damage from false

arrest         . or negligence").

        A police report will satisfy Section 12-309 only if, among

other things,       it actually "'disclose [s]                       both the factual cause
!
of     the   [plaintiff's]             injury          and     a     reasonable        basis        for

anticipating legal action as a consequence.'"                                 Jones v. District

of     Columbia,    879    F.     Supp.          2d    69,    77     (D.D.C.       2012)    (quoting

Washington v. District of Columbia, 429 A.2d 1362, 1366 (1981)).

In addition, the report must contain "enough information for the

District to conduct a prompt,                     properly focused investigation of

[the plaintiff's] claim."                   Id. at 78.

                                                 -10-
        Plaintiff       has    not     attached           to   her    pleadings          the        police

report prepared in connection with her July 12, 2009, arrest for

drunk driving.           Furthermore,          neither the Amended Complaint nor

the     documents       incorporated           by     reference             in    that        Complaint

provide any basis             to     conclude       that       such    report          disclosed the

"factual       cause"    of    the       injury asserted              in    this       case          i.e.,

Officer King's alleged defective calibration and maintenance of

the Intoxilyzer machine used to test Plaintiff's alcohol levels.

Therefore,        the     police          report          issued       in        connection           with

Plaintiff's arrest does not satisfy Section 12-309.

        Plaintiff has also failed to attach to her pleadings any

reports     prepared by MPD               in   connection            with    its       investigation

into     the    Intoxilyzer          problems.             The     only      evidence          she     has

presented regarding MPD' s                 investigation is a                    series of emails

among MPD officials in February and March 2010,                                        which discuss

the Intoxilyzer problems generally and refer to a                                        "summary of

the     [breath test]         problems" prepared by an unidentified author

"for     [certain MPD         officials' ]          use    in meetings [.]"                   See    Pl.'s

Supp.    Opp'n Ex.       2.        Although these emails                    show that MPD was

generally       aware     of       the     Intoxilyzer            probl€m,             they     do     not

establish      that     MPD     or    any      of    its       employees          or    agents        ever

prepared a report specifically identifying the facts giving rise

to    Plaintiff's       case.         Therefore,           they       also       fail    to     satisfy

Section 12-309.          Jones, 879 F. Supp. 2d at 77-78.

                                               -11-
       Finally,         Plaintiff         argues         that        "information             was

sufficiently available to the District to allow [it] to identify

the . . . tainted prosecutions."                  Pl.'s Opp'n at 7.             But neither

"sufficiently available" information nor "actual notice" define

compliance with Section 12-309.                 As the Court of Appeals for the

District of Columbia has held,              "[f] ailure of a formal notice or

a police report to meet the required specificity would bar the

suit even if [information in the District's possession] actual1y

prompted    the       city   to    make    an     investigation."              Campbell         v.

District of Columbia,             568 A. 2d 107 6,        107 9     (D.C.     1990)        (citing

Washington v.         District of Columbia,             429 A.2d 1362,              1367     (D.C.

1981));    see also Owens,          993 A.2d at 1089              (D.C.     2010)     ("Whether

the District of Columbia had 'actual notice of a potential claim

is   not   an    appropriate       consideration         under       section        12-309.'")

(citing    Chidel      v.    Hubbard,     840     A.2d    689,      695      (D.C.     2004)) . 8

       In sum,       the law is clear: Section 12-309 is satisfied only

by a   specific type         of MPD report          -    one    "that covers           all    the

requisite information,            easily found in one place."                       Jenkins v.

District        of    Columbia,     379     A.2d        1177,      1178       (D.C.        1977) .


8
  Enders v. District of Columbia, 4 A.3d 457, 467-68 (D.C. 2010),
on which Plaintiff relies, is inapposite. The plaintiff in that
case did not rely on a police report to provide the requisite
notice but rather sent a timely notice to the District
indicating his intent to file a false arrest claim.        It is
undisputed that Plaintiff never sent such a notice to the
District.


                                           -12-
Plaintiff        has        not     shown          that      such      a        report               exists.

Consequently,         she has not demonstrated compliance with Section

12-309 and her common law tort claims in Counts I-III must be

dismissed. 9

        B.     Count IV Shall Not Be Dismissed

        In   Count        IV,   Plaintiff         brings      a     claim     under             42    U.S.C.

§    1983    for          violation          of      her          constitutional                     rights.

Specifically,         she alleges           that    "[i] f      evidence        from a           properly

certified Intoxilyzer had been utilized,                              [she]           would not         have

been subject[ed] to and convicted of an offense with a mandatory

jail term."        Am. Compl.        <JI   90.     She contends that Defendants' use

of the allegedly invalid test results to convict her of the DWI

charge violated her rights under the Fifth,                                Sixth,          Eighth,          and

Fourteenth Amendments of the Constitution.                            Id.    <JI<JI   86-87.

       Defendants         agree     that     this       claim,      unlike        the       common          law

tort    claims       in    Counts      I-III,       is    not       subject           to   the        notice

requirements in Section 12-309. 10                      They contend, however, that it

is    barred    by     the      Supreme      Court's         1994     decision             in        Heck   v.


9
  Having so concluded, the Court shall not address Defendants'
alternative argument that Counts I-III are barred by the statute
of limitations.
10
   Defendants originally challenged this claim as untimely.
However, they now concede that "Plaintiff's claim under § 1983 .
  . is not time-barred, as Plaintiff only recently was permitted
to withdraw her guilty plea." Defs.' Resp. to Pl.'s Supp. Opp'n
at 5.


                                                 -13-
Humphrey, which held that,                   "in order to recover damages for                       [an]

allegedly          unconstitutional           conviction         or    imprisonment,           or    for

other harm caused by actions whose unlawfulness would render a

conviction          or      sentence      invalid,    a    §    1983    plaintiff must            prove

that    the        conviction        or    sentence       has    been       reversed      on     direct

appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make                    such determination,                or called into

question          by    a    federal      court's     issuance         of    a    writ    of     habeas

corpus[.]"             Heck, 512 U.S. at 486-87. 11

        At    the       time   Defendants       filed      their       Motion      to     Dismiss     in

October           2013,     Plaintiff's       DWI     conviction            had    not     yet      been

vacated and therefore,                 a malicious prosecution claim did not yet

exist        in     her     favor.         However,       on     February         21,     2014,      her

conviction was vacated by the                       Superior Court,              and on July 24,

2014,    the        District dismissed the                DWI    charge      nolle       prosequi     at

the conclusion of the bench trial.                              Consequently,           the criminal

charge on which Plaintiff was originally convicted has now been




11
   There is a split of authority, and our Court of Appeals has
not yet addressed, whether Heck applies to civil plaintiffs who
are no longer in state custody and therefore do not have access
to habeas corpus relief.    See, e.g., Molina-Aviles v. District
of Columbia, 797 F. Supp. 2d 1, 5 & n.5 (D.D.C. 2011) (noting
circuit split and citing cases).      It is unnecessary for ·the
Court to take a position on this issue because, even assuming
Heck applies to this case, as discussed below, it does not bar
Plaintiff's claim at the pleading stage.


                                                -14-
"declared invalid by a                state tribunal authorized to make such

determination."            Heck, 512 U.S. at 487.

       Defendants           argue     that        these     circumstances         are      not

sufficient         under    Heck because          although    "the    DWI     charge    [was]

dropped       by    the    government,                    Plaintiff    was     subsequently

convicted of DUI, an offense that arose from the same facts and

circumstances as the original charge."                       Defs.' Aug. 14 Notice at

2.     They fail,          however,    to cite any binding authority holding

that conviction of a different offense after retrial necessarily

precludes a Section 1983 plaintiff from showing that her earlier

conviction has been "invalidated" within the meaning of Heck.

As the Second Circuit recently observed:

       Heck does not automatically bar a § 1983 claim simply
       because the processes of the criminal justice system
       did not end up in the plaintiff's favor.  A plaintiff
       need not prove that any conviction stemming from an
       incident with the police has been invalidated, only a
       conviction that could not be reconciled with the
       claims of his civil action.

Poventud v. City of New York,                 750 F.3d 121,          132    (2d Cir. 2014)

(emphasis      in original)           (quoting VanGilder         v.    Baker,     435   F.3d

689,   692    (7th Cir. 2006)); see also Jackson v. Barnes, 749 F. 3d

755,    760        (9th   Cir.   2014)       ("[U]nder      certain        circumstances     a

plaintiff's          §    1983   claim       is    not     Heck-barred        despite      the

existence of an outstanding criminal conviction against him.").

       Defendants concede that the DWI charge on which Plaintiff

was    originally convicted            required proof of different                 evidence

                                             -15-
than the DUI charge on which she was later convicted.                                              See Mot.

at     11     ("Plaintiffs'          DWI        conviction,            as      opposed        to     a    DUI

conviction         or    OWI    conviction,            rested          solely       on       breath      test

scores [.] ")        (emphasis       added);        see      also        id.     at      13    ("[A]      DWI

conviction         is    solely dependent              on    the       breath       test       scores.") .

Furthermore,            the     evidence          on      which          the     now-vacated              DWI

conviction was,            in Defendants' words,                  "solely dependent" is the

very        evidence      Plaintiff          claims         was        tainted        by      Defendants'

alleged misconduct.                  Consequently,             the      DUI     conviction          can be

reconciled         with       Plaintiff's          claim          of     malicious            prosecution

regarding the DWI charge.

       In     sum,      the    record      is    sufficient            to     raise      a    claim that

Plaintiff's DWI charge was dismissed because the District lacked

competent         breath      test    evidence,          and      that       such     conviction has

therefore been "invalidated" within the meaning of Heck.                                                  See

Molina-Aviles,           797 F.      Supp.      2d at 7           (denying motion to dismiss

claims       of   plaintiffs         who     had       withdrawn            guilty       pleas      to    DWI

charges where such charges were awaiting retrial or subsequently

dismissed) . 12


12
   The cases cited by Defendants are either inapposite or support
the Court's holding that Plaintiff has stated a claim under
Heck.    In Brandley v. Keeshan, 64 F. 3d 196 (5th Cir. 1995),
abrogated on other grounds, Wallace v. Kato, 549 U.S. 384, 387-
92 (2007), the Court of Appeals for the Fifth Circuit held that
a "reversal of a conviction and remand for new trial is not, in
and of itself, a termination" sufficient to support a claim
under Heck, but simultaneously acknowledged that "an order of
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      Defendants' motion to dismiss Count IV under Heck shall be

denied.

IV.   CONCLUSION

      For the foregoing reasons, the District's Motion is granted

as to Counts I, II, and II, and denied as to Count IV.    An Order

shall accompany this Memorandum Opinion.




October 6, 2014                      Gladys Kess er
                                     United States District Judge




Copies to: attorneys on record via ECF




dismissal reflecting an affirmative decision not to prosecute" a
claim may suffice.     Id. at 199.     In Harris v. District of
Columbia, 696 F. Supp. 2d 123 (D. D.C. 2010), this Court held
that the plaintiff had not stated a common law claim for
malicious prosecution because, although he alleged that his
criminal charges had been dismissed, he failed to state any
reason for such dismissal or show it was with prejudice.   Id. at
133-34.   By contrast, the dismissal in this case occurred after
a bench trial, and the pleadings support the infe~ence that such
dismissal resulted from a lack of reliable breath test evidence.
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