Filing 7

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/19/09. (KD)

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UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) C A P T A I N GERRY SCOTT, P la in tif f , v. D I S T R I C T OF COLUMBIA, C iv il Action No. 09-61 (RMC) D e f e n d a n t. M E M O R A N D U M OPINION G e rry Scott, a D.C. Metropolitan Police officer, brought this suit against the District o f Columbia asserting that he was erroneously placed on leave without pay resulting in disciplinary a c tio n . His suit alleges a claim under the First Amendment as well as various claims under state law. T h e District moves to dismiss for failure to state a claim. Because the Complaint fails to state a c o n s titu ti o n a l claim and because the D.C. Comprehensive Merit Protection Act ("CMPA"), D.C. C o d e 1-601.01 et seq., provides an exclusive remedy for the state law claims, the motion to d is m i s s will be granted. I . FACTS C a p ta in Scott alleges that while he was assigned as evening watch commander for the s e c o n d district, he discovered that his annual leave balance was low. Compl. 3. Upon in v e s tiga tio n , he found that he had been placed on leave without pay ("LWOP") on various occasions w h e n he had actually been at work. Id. 4. He alleges that he attempted to correct his work a tte n d a n c e records but that he was unsuccessful and he was subjected to disciplinary action. Id. 6-8. Based on these facts, Captain Scott brought a four count Complaint against the District of C o l u m b ia alleging the following causes of action: C o u n t I violation of the First Amendment via 42 U.S.C. 1983; C o u n t II breach of contract; C o u n t III negligence; and Count IV intentional infliction of emotional distress. C o m p l . 11-27.1 Captain Scott seeks both compensatory and punitive damages. T h e Complaint was filed in D.C. Superior Court on December 9, 2008, and the D i s tric t removed the case to this Court on January 12, 2009. The District now moves to dismiss for fa ilu re to state a claim; Captain Scott opposes. As explained below, the motion to dismiss will be gra n te d . I I . LEGAL STANDARD A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges t h e adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. F e d e ra l Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement o f the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must b e sufficient "to give a defendant fair notice of the claims against him." Bell Atl. Corp. v. Twombly, 1 2 7 S. Ct. 1955, 1964 (2007). Although a complaint does not need detailed factual allegations, a p l a i n t i ff' s obligation to provide the grounds of his entitlement to relief "requires more than labels a n d conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1 In its opening paragraph, the Complaint states, "Now comes Captain Gerry Scott . . . with a complaint alleging violations of (1) First Amendment; (2) Fourth Amendment; (3) Abuse of P ro c e s s ; (4) Malicious Prosecution; (5) Breach of Contract; and (6) Intentional Infliction of E m o t io n a l Distress." Because the body of the Complaint does not articulate Fourth Amendment, a b u s e of process, or malicious prosecution claims, or facts that might support such claims, the Court tre a ts the inclusion of these claims as inadvertent error and disregards them. -2- 1 9 6 4 -6 5 (internal citations omitted). Rule 8(a) requires a "showing" and not just a blanket assertion o f a right to relief. Id. at 1965 n.3. In considering a motion to dismiss, a court must treat the complaint's factual a lle ga tio n s as true, "even if doubtful in fact," id. at 1965, and must draw all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003). Even so, th e facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S . Ct. at 1965, and the court need not accept as true inferences unsupported by facts set out in the c o m p la in t or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D .C . Cir. 2002). "[A] complaint needs some information about the circumstances giving rise to the c la im s ." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) ( em p h a s is in original). In deciding a Rule 12(b)(6) motion, the Court may consider only "the facts alleged in th e complaint, documents attached as exhibits or incorporated by reference in the complaint, and m atters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 1 9 1 , 196 (D.D.C. 2002) (citation omitted). Once a claim has been stated adequately, "it may be s u p p o rte d by showing any set of facts consistent with the allegations in the complaint." Twombly, 1 2 7 S. Ct. at 1968-69. I I I . ANALYSIS C a p ta in Scott asserts that he is entitled to relief under 42 U.S.C. 1983 due to the D i s tric t's alleged violation of his rights under the First Amendment to the U.S. Constitution. To p re v a il in a civil rights action under 42 U.S.C. 1983, a plaintiff must plead and prove that the d e fe n d an t, acting under color of state or D.C. law, deprived the plaintiff of a right secured by the -3- C o n s titu tio n or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 4 5 1 U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). F o r any action under 1983, a court must address the threshold question of "whether the plaintiff h a s alleged the deprivation of a constitutional right at all." Baker v. McCollan, 443 U.S. 137, 146-47 (19 7 9 ). In order to state a claim for retaliation in violation of the First Amendment, a plaintiff m u s t prove: (1) that he is a public employee who spoke as a citizen on a matter of public concern; ( 2 ) that his interest under the First Amendment is not outweighed by the government's interest in p ro m o tin g efficient public service; (3) that his speech was a substantial or motivating factor for the d e n ia l of a right or benefit; and (4) that the government would not have reached the same conclusion a b s e n t the protected conduct. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007); see also G a r c e tti v. Ceballos, 547 U.S. 410, 418 (2006). T h e only speech that Captain Scott mentions in his Complaint is a grievance he filed c h a lle n gi n g the erroneous time entries.2 However, expressions of personal dissatisfaction by a d is c o n te n te d employee do not amount to matters of public concern. Murray v. Gardner, 741 F.2d 4 3 4 , 438 (D.C. Cir. 1984); see also Connick v. Myers, 461 U.S. 138, 145 (1983) (district attorney w h o circulated a document complaining about office management and objecting to her transfer was n o t speaking on a matter of public concern). The facts alleged "must be enough to raise a right to re lie f above the speculative level," Twombly, 127 S. Ct. at 1965, and the court need not accept as true in fe re n c e s unsupported by facts set out in the complaint or legal conclusions cast as factual 2 The Complaint implies that he filed a grievance as follows: "Although his complaint in v o l v e d his command structure's failure to properly maintain his record, his immediate commander i n v e s t i ga t e d his complaint that the stress caused by the situation was a duty related injury." Compl. 8. -4- a lle gatio n s . Browning, 292 F.3d at 242. The accuracy of Captain Scott's time entries is not a matter o f public concern. Because the Complaint fails to state a claim under the First Amendment, the First A m e n d m e n t claim must be dismissed. Without a constitutional claim, Captain Scott has failed to s ta te a 1983 claim.3 T h e remaining counts of the Complaint, alleging breach of contract, negligence, and in te n tio n a l infliction of emotional distress, all arise from an employment dispute concerning the a lle ge d erroneous LWOP records. These claims must be dismissed due to failure to exhaust a d m in is tra tiv e remedies because they are governed by the CMPA , D.C. Code 1-601.01 et seq. T h e CMPA establishes a merit personnel system for District employees through which employee griev a n c e s and adverse personnel actions are handled. Id. 1-605.02. The CMPA covers " g ri e v a n c e s " which include "any matter under the control of the District government which impairs o r adversely affects the interest, concern, or welfare of employees." Id. 1-603.01(10). The CMPA w a s intended "to create a mechanism for addressing virtually every conceivable personnel issue" b e tw e e n the District and its employees. Lattisaw v. District of Columbia, 905 A.2d 790, 793 (D.C. 2 0 0 6 ) . "With few exceptions, the CMPA is the exclusive remedy for a District of Columbia public Plaintiff's opposition to the motion to dismiss attempts to assert another constitutional claim b y alleging that the "seizure of his earned leave . . . [runs] afoul of his Fourth Amendment Property R i gh t s ." Pl.'s Opp'n at 7. The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not b e violated." U.S. Const. amend. IV. The amendment establishes "rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests." Illin o is v. McArthur, 531 U.S. 326, 330 (2001). It simply does not apply to Captain Scott's w o r k p la c e grievance seeking correction of his time records. Further, even if Captain Scott had stated a constitutional claim, he has not stated a 1983 claim. In order to state a 1983 claim against a m u n ic ip a lity, a plaintiff must assert that the municipality, through an official custom, practice, or p o lic y, caused the alleged constitutional violation. Monell v. Dep't of Social Servs., 436 U.S. 658, 6 9 0 - 9 5 (1978); Triplett v. Dist. of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997). Captain Scott h a s made no such allegation. 3 -5- e m p l o ye e who has a work-related complaint of any kind." Baker v. District of Columbia, 785 A.2d 6 9 6 , 697 (D.C. 2001). Thus, "when tort claims are predicated upon conduct that may be a proper s u b je c t of a grievance under the CMPA," the CMPA precludes litigation until administrative re m e d ie s are exhausted. Washington v. Dist. of Columbia, 538 F. Supp. 2d 269, 279 (D.D.C. 2008). In Washington, the court dismissed claims for defamation and emotional distress due to the plaintiffs' fa ilu re to exhaust such claims under the CMPA. Id. at 279-80. C a p ta in Scott is a D.C. employee subject to the CMPA, and his claim concerning the e rro n e o u s reporting of his time records is a work-related grievance that falls under the CMPA. B e ca u s e Captain Scott failed to exhaust his administrative remedies under the CMPA, his claims for b re a c h of contract, negligence, and intentional infliction of emotional distress will be dismissed.4 In his opposition to the motion to dismiss, Captain Scott contends that the motion to d i s m i s s is an improper "collateral attack" and that the Complaint sufficiently sets forth the claims fo r relief. Pl.'s Opp'n [Dkt. # 5] 16 & 19. As explained above, the Complaint fails to state a c la im upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The C o m p l a in t does not assert that Captain Scott was retaliated against based on speech related to a Some courts have not required a plaintiff to exhaust administrative remedies where the p l a i n t i ff seeks punitive damages, reasoning that an administrative remedy would not be adequate. S e e , e.g., Crockett v. D.C. Metro. Police Dep't, 293 F. Supp. 2d 63, 67 (D.D.C. 2003); but see Payne v . Dist. of Columbia, Civ. No. 08-163, 2008 WL 5401532, *8 (D.D.C. Dec. 30, 2008) (mere demand fo r punitive damages does not show CMPA's procedures are inadequate). While the Complaint in th is case asserts a claim for punitive damages, such damages are generally not available against the D is tric t. Feirson v. Dist. of Columbia, 315 F. Supp. 2d 52, 57 (D.D.C. 2004) (a plaintiff cannot r e c o v e r punitive damages against the District on a 1983 claim); Barnes v. Gorman, 536 U.S. 181, 1 8 7 (2002) (punitive damages are not available for breach of contract); Butera v. Dist. of Columbia, 2 3 5 F.3d 637, 658 (D.C. Cir. 2001) (punitive damages are generally unavailable against m u n i c i p a l it ie s such as the District of Columbia except where there are extraordinary circumstances). C a p t ain Scott's conclusory demand for punitive damages does not exempt him from the requirements o f administrative exhaustion. 4 -6- m a tte r of public concern and thus does not state a First Amendment claim. Also, the exclusive re m e d y for Captain Scott's complaint about his LWOP time entries lies under the CMPA, and not u n d e r state law regarding breach of contract or tort. C a p t a i n Scott further opposes the motion to dismiss by claiming that the District s h o u l d be defaulted for failure to timely respond to the Complaint. Plaintiff contends that he p ro p e rly served the District on December 12, 2008, and that the District should have responded by D e c e m b e r 31, 2008. The District did not respond to the Complaint until it removed the case to this C o u rt on January 12, 2009, and filed a motion to dismiss on January 21, 2009. P la in tiff erroneously assumes that the District's response to the Complaint was due 2 0 days after service. Pursuant to the rules of the District of Columbia Superior Court, the District h a d 60 days to answer after service. SCR-Civil 12(a)(3)(A). And by statute, the District had 30 days to remove the case to federal district court. 28 U.S.C. 1446(b). The District received the Summons a n d Complaint on December 12, 2008 and removed the case to this Court within 30 days, on January 1 2 , 2009. Default for lack of timely response is not warranted. M o r e o v e r, the District points out that while it received the complaint on December 1 2 , service was not proper under the applicable Superior Court rules. Under those rules, service on th e District of Columbia is achieved by delivering a copy of the summons and complaint to the M a yo r (or designee) and to the D.C. Office of the Attorney General (or designee). SCR-Civil 4 ( j) (1 ) . Captain Scott did not personally serve either the Mayor or the D.C. Attorney General. In s te a d , he sent the Summons and Complaint by certified mail. Where certified mail is permitted, s e rv ic e must comply with all other provisions of Rule 4, see SCR-Civil 4(l), and thus if the return re c e ip t is not signed by the party named in the summons, the affidavit for certified mail must include " s p e c ific facts from which the Court can determine that the person who signed the receipt meets the -7- q u a lific a tio n s for receipt of process." SCR-Civil 4(l)(2). Thus, to show proper service, Captain S c o tt would have to show that the Mayor and the D.C. Attorney General, or their respective d e s i g n e e s , signed the return receipts. "M. Smith" signed the return receipt on behalf of the Mayor; n o one by that name is designated to receive service on the Mayor's behalf. Compare Pl.'s Opp'n E x . 2 with Def.'s Reply, Ex. A. "M. Anderson" signed the return receipt on behalf of the Attorney G e n e ra l; no one by that name is designated to receive service on the D.C. Attorney General's behalf. C o m p a r e Pl.'s Opp'n Ex. 3 with Def.'s Reply, Ex. B. Default cannot be entered where there was insufficient service of process. Although d e fa u l t may be entered upon a defendant's failure to plead or otherwise defend, Fed. R. Civ. P. 55(a), a defendant's obligation to respond to a complaint arises only upon service of the summons and c o m p la in t. Fed. R. Civ. P. 12(a). Because service on the District was not sufficient, its obligation t o plead or otherwise respond had actually not arisen. Even so, the District removed the case to fe d e r a l court within the appropriate 30-day removal period and shortly thereafter moved to dismiss. D e fa u l t is not proper under these circumstances. I V . CONCLUSION F o r the foregoing reasons, the District's motion to dismiss [Dkt. # 2] will be granted a n d this case will be dismissed. A memorializing order accompanies this Memorandum Opinion. D a te : F e b ru a ry 20, 2009 _ _ _ _ _ _ _ _ _ _ /s /_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ R O S E M A R Y M. COLLYER U n ite d States District Judge -8-

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