BARNES v. DISTRICT OF COLUMBIA et al
MEMORANDUM OPINION regarding the defendants' 13 Motion to Dismiss. Signed by Chief Judge Beryl A. Howell on March 3, 2017. (lcbah2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARC S. BARNES, d/b/a PARK AT 14TH,
Civil Action No. 15-2069 (BAH)
Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.,
The plaintiff, Marc S. Barnes, brought this lawsuit against the defendants, the District of
Columbia (the “District”) and D.C. Metropolitan Police Department (“MPD”) Sergeant Jonathan
Clingerman, alleging violations of his constitutional and common law rights. See Compl., ECF
No. 1. The plaintiff’s claims arise from his arrest and prosecution for second-degree theft after a
would-be patron at the plaintiff’s night club accused the plaintiff of confiscating and retaining
her identification. See First Amended Complaint (“FAC”) ¶¶ 43, 60–85, ECF No. 12. The
defendants have moved to dismiss the plaintiff’s First Amended Complaint on the ground that
the plaintiff has failed to state any claim to relief. See Defs.’ Mot. Dismiss at 1, ECF No. 13.
For the reasons set forth below, the plaintiff’s federal claims will be dismissed, and the plaintiff’s
state claims will be dismissed without prejudice.
The facts below, taken from the First Amended Complaint, will be accepted as true for
the purposes of the pending motion. At the time of the events underlying this action, the plaintiff
operated The Park at 14th, a night club and restaurant located in the District of Columbia. FAC
¶¶ 4, 7. Under the laws of the District of Columbia, the plaintiff is required to “take measures to
ensure that alcoholic beverages are not sold or consumed by minors,” “provide a safe and secure
environment for the public,” and “avert conditions that cause a public nuisance or breach of the
peace.” Id. ¶ 7.
Shortly after midnight on August 8, 2014, a group of three people attempted to enter the
plaintiff’s night club, where a doorman required them to “present a valid form of identification.”
Id. ¶¶ 8–9. As to one of these three would-be entrants (“Patron 1”), the doorman determined that
the photo on her presented identification, a driver’s license issued to Fiona Weeks by the
Republic of Liberia, was not a photo of her. Id. ¶ 10. Failing to produce any other valid form of
identification, Patron 1 was denied entrance. Id. ¶ 11. After “several unsuccessful attempts to
bribe the doorman” into letting Patron 1 into the club, the group left without requesting the return
of the license. Id. ¶¶ 13–14.
Then, on or about August 10, 2014, Patron 1 returned to the plaintiff’s night club, along
with two new companions, believed to be Vinise Weeks and Fiona Weeks. Id. ¶¶ 15, 39. The
three women entered the club, at which time a manager at the club recognized Patron 1 from two
days earlier and “immediately instructed security to confirm that [Patron 1] had gained lawful
entry to the club.” Id. ¶¶ 16–17. Patron 1 produced a residential permit issued to Fiona Weeks
by the Republic of Liberia, and security personnel determined that the photo was not a photo of
Patron 1. Id. ¶¶ 19–20. Patron 1 was not able to produce another form of identification when
asked and was then asked to leave the club, which she did, without requesting the return of the
permit. Id. ¶¶ 21–22.
According to the plaintiff, security personnel also asked Vinise and Fiona Weeks to leave
because they “were complicit in helping [an] underage female gain unlawful entry into the club.”
Id. ¶ 24. The two “caused a disturbance and refused to leave the club,” and the plaintiff was
summoned to address this disturbance. Id. ¶¶ 25–26. As the disturbance then escalated, the
plaintiff “requested assistance from Officer Gonzalez, a member of his security team,” and a
member of the MPD detailed to the club that evening. Id. ¶¶ 27–29. The plaintiff explained to
the two women that “they had been asked to leave the club because . . . they participated in an
unlawful act that caused an underage person to gain unlawful entry to a night club” and rejected
their pleas to remain in the club. Id. ¶¶ 30–32. When Fiona Weeks demanded the return of her
permit, which had been confiscated from Patron 1, the plaintiff refused, advising Fiona Weeks
that the permit “would be returned to the issuing authority to ensure that it would be returned to
the true owner” in conformity with “the club’s policy in handling fraudulent uses of valid forms
of ID.” Id. ¶¶ 33–34. After exchanging harsh words with the plaintiff and Officer Gonzalez, the
two women left the area. Id. ¶¶ 35–37.
One month later, on or about September 10, 2014, two officers from the MPD arrived at
the plaintiff’s night club and asked the plaintiff for the identification belonging to Fiona Weeks,
explaining that she had “filed a claim stating that her ID was taken from her by [the] plaintiff and
[the] plaintiff refused to return the ID to her because he thought the ID was fake.” Id. ¶ 43. The
plaintiff told the officers that the permit was no longer at the club because the club “does not
store ‘lost and found’ items beyond two weeks.” Id. ¶¶ 44–45. The plaintiff also told the
officers that “Fiona Weeks had knowingly and willfully given the [p]ermit to [an] underage
female to facilitate [the latter’s] illegal entry” to the club. Id. ¶¶ 48–49. The plaintiff further
explained that the Permit “was confiscated only to avoid its further use in fraudulent activity.”
Id. ¶ 50. The plaintiff also assured the officers “that the authenticity of the Permit as a valid
form of ID was never questioned by the [club] as alleged by Fiona Weeks.” Id. In response, the
officers told the plaintiff that “he had no legal right to confiscate or shred any form of
identification even where the ID is clearly fake or being used as ID by someone other than the
true owner” and directed the plaintiff to “involve the MPD when confronted with incidents of
identity theft and fraud.” Id. ¶ 51. The plaintiff told the officers that he had in fact requested
assistance from Officer Gonzalez at one point during the events related to the confiscation of the
permit. Id. ¶ 52. Nevertheless, the officers reported that the plaintiff was “illegally confiscating
and destroying his patrons IDs.” Id.
On October 28, 2014, almost three months after the plaintiff’s interaction with Fiona
Weeks at the club, defendant Sergeant Clingerman executed an affidavit in support of an arrest
warrant for the plaintiff, and that same day, the plaintiff “was notified that an arrest warrant had
been issued [by a magistrate] charging him with theft of property belonging to Fiona Weeks.”
Id. ¶¶ 60, 74. Prior to preparing the arrest warrant application, the plaintiff concedes that
Sergeant Clingerman “spoke directly with the plaintiff,” during which conversation the plaintiff
told Sergeant Clingerman that the identification document in question “was not taken from Fiona
Weeks,” “had been used fraudulently by an underage young woman attempting to gain entry into
[the plaintiff’s] place of business,” “was confiscated from the young woman only to avoid its
further use in fraudulent activity,” and that the “young woman did not object to the confiscation
of the false ID,” “Fiona Weeks had provided the fraudulent ID to the young woman” and an
“MPD police officer worked at the plaintiff’s place of business and was involved when the
subject ID was confiscated.” Id. ¶ 141. The plaintiff alleges, on information and belief, that the
affidavit was executed “in retaliation of a complaint previously filed by [the] plaintiff against
two of [Sergeant Clingerman’s] fellow officers,” and that Sergeant Clingerman “orally expressed
his disdain for [the plaintiff] to various members of the MPD” before signing the Affidavit. Id.
On or about October 31, 2014, the plaintiff was arrested on charges of second-degree
theft and destruction of property in violation of D.C. Code § 22-3211, id. ¶ 77, when he “turned
himself into the MPD,” id. ¶ 76. After being “placed in handcuffs” and “detained for more than
12 hours,” the plaintiff was released and ordered to report weekly to Pretrial Services Agency
pending his trial date. Id. ¶ 79. The plaintiff complains that at Pretrial Services, he “was treated
as a common criminal and subjected to public ridicule.” Id. ¶ 81. A status hearing for the
plaintiff’s case was scheduled on November 24, 2014, but before that date, on November 21,
2014, the prosecutor entered a nolle prosequi for all criminal charges against the plaintiff,
voluntarily discontinuing the prosecution. Id. ¶¶ 82–83.
According to the plaintiff, the MPD has consistently denied his requests for assistance in
handling the identity theft and fraud he encounters as the owner and operator of a night club. Id.
¶ 53. Specifically, the plaintiff avers that the MPD “has never attempted to investigate cases of
identity theft at the Park, nor has it sought the prosecution of any person(s) who have attempted
or succeeded in entering the [Park] unlawfully,” id. ¶ 57, despite the plaintiff’s efforts “on a
number of occasions personally [bringing] these problems to the attention of MPD supervisors,
including the Commanding Officers of the Second District, [but] to no avail,” id. ¶ 106. As a
result, the plaintiff “faces daily the risk of losing his license to operate due to MPD’s refusal to
intervene in efforts to deter or even stop underage persons from attempting to enter the club
illegally.” Id. ¶ 58. Instead, prior to the events underlying the present action, the plaintiff states
that, on at least one occasion, a police officer of the MPD “ordered [the] plaintiff to return an
[identification (“ID”)] to [a] potential patron even while acknowledging that the ID did not
belong to the presenter.” Id. ¶ 54.
On November 20, 2015, the plaintiff filed this lawsuit against the defendants, alleging
violations of his constitutional and common law rights, Compl. at 1, and subsequently filed an
amended complaint, which asserted eight counts: false arrest, in violation of the Fourth
Amendment, under 42 U.S.C. § 1983, which provides a private right of action for violations of
constitutional rights caused by persons acting under color of law, against defendant Sergeant
Clingerman (Count I); malicious prosecution, in violation of the Fourth Amendment, under 42
U.S.C. § 1983, against defendant Sergeant Clingerman (Count II); deliberate indifference under
42 U.S.C. § 1983, against defendant District of Columbia (Count III); false arrest under state law
against both defendants (Count IV); malicious prosecution under state law against both
defendants (Count V); intentional infliction of emotional distress under state law against both
defendants (Count VI); abuse of process under state law against both defendants (Count VII);
and defamation per se under state law against both defendants (Count VIII). See generally FAC.
The defendants’ motion to dismiss the First Amended Complaint for failure to state a claim is
now ripe for consideration. 1
Motion to Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity
and, at the same time, “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) (internal quotation marks
omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007). The Supreme
In his opposition to the defendants’ motion to dismiss, the plaintiff dropped three of the eight causes of
action enumerated in the First Amended Complaint: the state law false arrest, abuse of process, and defamation per
se claims (Counts IV, VII, and VIII). Pl.’s Mem. Supp. Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”) at 16, 20, ECF
No. 15. Accordingly, only Counts I, II, III, V, and VI are considered.
Court has cautioned that although “Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at
678). A claim is facially plausible when the plaintiff pleads factual content that is more than
“‘merely consistent with’ a defendant’s liability,” “allow[ing] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012).
Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a
complaint must offer “more than labels and conclusions” or a “formulaic recitation of the
elements of a cause of action” to provide “grounds” of “entitlement to relief,” Twombly, 550
U.S. at 555 (internal quotation marks omitted), and “nudge [the] claims across the line from
conceivable to plausible,” id. at 570. Thus, in considering a Rule 12(b)(6) motion, the “court
assumes the truth of all well-pleaded factual allegations in the complaint and construes
reasonable inferences from those allegations in the plaintiff’s favor, but is not required to accept
the plaintiff’s legal conclusions as correct.” Sissel v. U.S. Dep’t of Health & Human Servs., 760
F.3d 1, 4 (D.C. Cir. 2014) (citation omitted).
In suits brought under 42 U.S.C. § 1983, “[t]he doctrine of qualified immunity protects
government officials ‘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.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Pearson v. Callahan,
555 U.S. 223, 231 (2009)). The doctrine “gives government officials breathing room to make
reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011)). The
defendant bears the burden of pleading and proving the defense of qualified immunity. See
Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
In determining whether a government official should be entitled to qualified immunity,
the two pertinent questions are (1) “whether the facts that a plaintiff has alleged . . . or shown . . .
make out a violation of a constitutional right,” and (2) “whether the right at issue was ‘clearly
established’ at the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have “discretion to decide which of
the two prongs of qualified-immunity analysis to tackle first.” Lash v. Lemke, 786 F.3d 1, 5
(D.C. Cir. 2015) (quoting al-Kidd, 563 U.S. at 735).
The plaintiff’s claims lend themselves to division into three categories. First, the plaintiff
brings two federal claims, pursuant to 42 U.S.C. § 1983, against Sergeant Clingerman, alleging
false arrest and malicious prosecution in violation of his Fourth Amendment rights. See FAC ¶¶
86–101. Second, the plaintiff brings a single federal claim, also pursuant to 42 U.S.C. § 1983,
against the District, alleging deliberate indifference to the aforementioned constitutional
violations. See FAC ¶¶ 102–11. Third, the plaintiff brings two state claims against both
defendants, alleging malicious prosecution and intentional infliction of emotional distress. See
FAC ¶¶ 118–31. These three categories of claims will be addressed seriatim below.
The Plaintiff’s Federal Claims Against Sergeant Clingerman Fail Because
This Defendant Is Entitled to Qualified Immunity
The plaintiff claims, in Count I, that he was falsely arrested “pursuant to a defective
warrant which did not establish probable cause to believe that he committed theft.” FAC ¶ 88.
His federal malicious prosecution claim, in Count II, is also predicated on a purported lack of
probable cause, alleging that the “charges [against him] were not based upon probable cause, but
were maliciously initiated by defendant Clingerman pursuant to a legally deficient Complaint
and Affidavit.” Id. ¶ 97. As support for both of these claims, the plaintiff contends that there
was no probable cause to believe he was involved directly in the alleged crime, Pl.’s Opp’n at 6,
or “had the specific intent to commit the crime of theft,” FAC ¶ 88; see also FAC ¶ 97. The
defendants counter that Sergeant Clingerman is entitled to the defense of qualified immunity
because this defendant “had probable cause to believe that [the plaintiff] intentionally deprived
Ms. Weeks of the use and benefit of her property,” in violation of D.C. Code § 22-3211. Defs.’
Mem. P. & A. Supp. Defs.’ Mot. Dismiss (“Defs.’ Mem.”) at 5, ECF No. 13. According to the
defendants, none of the plaintiff’s factual allegations regarding his involvement in the alleged
criminal conduct or intent to commit a crime undermines the existence of probable cause. Id. at
5–6; Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Dismiss at 2–3, ECF No. 16. The defendants are
The Fourth Amendment requires that an officer effecting an arrest or initiating
prosecution have probable cause to do so. See U.S. CONST . amend. IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .”). For
this reason, whether an arrest or prosecution is constitutionally valid will often turn on whether
probable cause existed. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether [an] arrest was
constitutionally valid depends . . . upon whether, at the moment the arrest was made, the officers
had probable cause to make it . . . .”); Pitt v. District of Columbia, 491 F.3d 494, 510 (D.C. Cir.
2007) (“[M]alicious prosecution is actionable under the Fourth Amendment to the extent that the
defendant’s actions cause the plaintiff to be ‘seized’ without probable cause.”). Ordinarily,
however, an officer is entitled to qualified immunity, regardless of whether probable cause
existed in fact, “[w]here the alleged Fourth Amendment violation involves a search or seizure
pursuant to a warrant.” Messerschmidt, 565 U.S. at 546. In that circumstance, “the fact that a
neutral magistrate has issued a warrant is the clearest indication that the officers acted in an
objectively reasonable manner,” as required for the defense of qualified immunity to apply. Id.
As the Supreme Court has explained, “‘in the ordinary case, an officer cannot be expected to
question the magistrate’s probable-cause determination’ because ‘it is the magistrate’s
responsibility to determine whether the officer’s allegations establish probable cause and, if so,
to issue a warrant comporting in form with the requirements of the Fourth Amendment.’” Id. at
547 (alterations omitted) (quoting United States v. Leon, 468 U.S. 897, 921 (1984)).
Accordingly, given the issuance of a warrant by a magistrate in the instant case, the plaintiff
wages an uphill battle in pressing his claims against Sergeant Clingerman.
“[I]n some circumstances,” however, an “officer will have no reasonable grounds for
believing that the warrant was properly issued.” Leon, 468 U.S. at 922–23 (footnote omitted).
For example, “if the magistrate or judge in issuing a warrant was misled” as to the existence of
probable cause by information included or omitted from the supporting affidavit by the executing
officer, or if the warrant was based on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable,” an officer may be liable. Id. at 923
(quoting Brown v. Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurring in part)); see
Messerschmidt, 565 U.S. at 547 (discussing this “narrow exception” and noting “the threshold
for establishing [it] is a high one, and it should be”). 2
In the instant case, the warrant and supporting affidavit executed by Sergeant Clingerman
are referenced in the First Amended Complaint but not provided by any party. In any event, the
plaintiff does not allege that the warrant was invalid on its face, but rather suggests that even
though the warrant was facially valid, the supporting affidavit was somehow flawed as a result of
misleading information or omissions material to the magistrate’s probable cause determination.
See Pl.’s Opp’n at 12 (averring “it was wrongfully indicated in the arrest warrant application
Complaint” that Fiona Weeks’s “International Passport” was “‘wrongfully obtained and used’
by” the plaintiff). Notwithstanding the vagueness of the plaintiff’s allegations regarding the
precise flaws alleged in the affidavit, review of the First Amended Complaint, which focuses on
the lack of any probable cause, reveals ample information for resolution of the parties’
contentions regarding Sergeant Clingerman’s entitlement to the shield of qualified immunity. In
other words, if the plaintiff’s factual allegations, the truth of which are assumed, fail to show a
lack of probable cause, the plaintiff will not have “ma[d]e out a violation of a constitutional
right” as required by the first prong of the qualified immunity analysis to remove that defense’s
protection. Pearson, 555 U.S. at 232. Thus, while an officer may be entitled to qualified
immunity even where probable cause is lacking, the existence of probable cause necessarily
entitles him to that defense. In addition, as is explained infra Part III.B, if the plaintiff has failed
to plead facts sufficient to show a violation of a constitutional right, the plaintiff’s § 1983 claim
against the District will also necessarily fail, obviating the need for the Court to consider other
While its decision in Leon addressed qualified immunity in the context of a suppression hearing, the
Supreme Court has applied the same standard to an officer’s request for an arrest warrant. See Malley v. Briggs, 475
U.S. 335, 344–45 (1986).
arguments of the parties regarding the District’s liability. Finally, if probable cause exists, the
plaintiff’s allegations regarding Sergeant Clingerman’s malice toward the plaintiff, see FAC ¶¶
67–68, are wholly irrelevant. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (noting “an
allegation of malice is not sufficient to defeat immunity if [the official acted in an] objectively
reasonable manner”—as is plainly the case where an officer acted in reliance on probable cause
(emphasis added)). For these reasons, probable cause will now be assessed.
An arrest or prosecution is supported by probable cause if, at the time of the arrest or
prosecution, “the facts and circumstances within [the officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.” Beck, 379 U.S. at 91. 3 Such a belief
need not be “correct or more likely true than false,” Texas v. Brown, 460 U.S. 730, 742 (1983),
nor does probable cause “require the same type of specific evidence of each element of the
offense as would be needed to support a conviction,” Adams v. Williams, 407 U.S. 143, 149
(1972). Nevertheless, “the police cannot establish probable cause without at least some evidence
supporting the elements of a particular offense, including the requisite mental state.” Wesby v.
District of Columbia, 765 F.3d 13, 19 (D.C. Cir. 2014) (emphasis in original).
“To determine whether [an officer] had probable cause to believe that [a plaintiff was]
violating District of Columbia law, we look to District law to identify the elements of each of
those offenses.” Id. To sustain a conviction for second-degree theft under D.C. Code § 22-3211,
the government must prove (1) “that the accused ‘wrongfully obtained the property of
Given that the probable cause analysis focuses on the facts and circumstances known to the officer at the
time of the allegedly unconstitutional action, the analysis could differ for a plaintiff’s false arrest and malicious
prosecution claims if new information came to light between the plaintiff’s arrest and prosecution. See Pitt, 491
F.3d at 502. In this case, however, the plaintiff has not alleged that new information surfaced between the two
events, and thus a single probable cause analysis for both claims is appropriate.
[another],’” (2) “that at the time he obtained it, he specifically intended ‘either to deprive
[another] of a right to the property or a benefit of the property or to take or make use of the
property for [himself] . . . without authority or right,’” and (3) “that the property had some
value.” Russell v. United States, 65 A.3d 1172, 1177 (D.C. 2013) (quoting Nowlin v. United
States, 782 A.2d 288, 291 (D.C. 2001)). In contending that Sergeant Clingerman lacked
probable cause to arrest and prosecute the plaintiff, the plaintiff focuses on the first two elements
of second-degree theft, arguing that he “himself was not at all involved in the actual confiscation
and destruction of Fiona Weeks[’s] documents” and that, in any event, the evidence did not
demonstrate the plaintiff had the requisite specific intent. Pl.’s Opp’n at 6, 9. The plaintiff’s
own allegations set out in the First Amended Complaint undercut both of these arguments. See
Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (noting that a party may plead
herself out of court by pleading facts that show she has no legal claim); U.S. Gypsum Co. v.
Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003) (“A litigant may plead itself out of court by
alleging (and thus admitting) the ingredients of a defense.”).
The plaintiff’s first argument, that probable cause was lacking due to the lack of evidence
showing the plaintiff was involved in the confiscation and destruction of Fiona Weeks’s
identification, seemingly ignores the multiple factual allegations to the contrary set out in the
First Amended Complaint. For example, the plaintiff alleges that, in pursuing the arrest and
prosecution of the plaintiff, Sergeant Clingerman relied on Fiona Weeks’s complaint, which
states “that her ID was taken from her by [the] plaintiff and [the] plaintiff refused to return the ID
to her because he thought the ID was fake.” FAC ¶ 43. The MPD’s subsequent investigation of
Fiona Weeks’s police complaint, which included at least two conversations with the plaintiff,
does not appear to have revealed any information suggesting that the plaintiff was not involved
in the confiscation of Fiona Weeks’s property. To the contrary, the facts in the plaintiff’s First
Amended Complaint reflect that he never denied having personal involvement with the
confiscation and, instead, demonstrated ample knowledge of the events surrounding the
identification’s confiscation and retention at the Park. The plaintiff “informed the officers that
the requested ID had in fact been used in the commission of a crime,” “Fiona Weeks should be
arrested because she was a willing participant in the criminal activity,” “the Park gained
possession of the [p]ermit only because it had been used fraudulently,” “Fiona Weeks had
knowingly and willfully given the [p]ermit to [an] underage female to facilitate [the latter’s]
illegal entry to the Park,” “the subject ID was confiscated only to avoid its further use in
fraudulent activity,” and “he had in fact involved a member of the MPD, Officer Gonzales [sic]
[,] on August 10, 2014, when the requested [p]ermit was confiscated.” Id. ¶¶ 47–52; see also id.
¶ 141. Moreover, the plaintiff concedes that he interacted directly with Ms. Weeks on August
10, 2014, and at that time personally rejected her request for return of the identification
document at issue. Id. ¶¶ 33–37, 39. The plaintiff further explained that the identification was
not taken from Fiona Weeks and that the person from whom it was confiscated did not object to
its confiscation. See id. ¶ 141. Far from denying involvement with the confiscation and
retention of Ms. Weeks’s property, the plaintiff’s detailed recitation of the underlying events
suggests direct involvement in that confiscation. Accordingly, the plaintiff cannot establish a
lack of probable cause to believe he was directly involved in the confiscation and retention of
Ms. Weeks’s property.
The plaintiff’s second argument, that probable cause was lacking with respect to his
specific intent to commit the crime, also fails in view of the facts alleged in the First Amended
Complaint. As explained above, to establish second-degree theft under D.C. Code § 22-3211,
the government must prove that the plaintiff “specifically intended ‘either to deprive [another] of
a right to the property or a benefit of the property or to take or make use of the property for
[himself] . . . without authority or right.’” Russell, 65 A.3d at 1177 (quoting Nowlin, 782 A.2d at
291). The plaintiff contends that the facts alleged establish a lack of probable cause as to
specific intent because they demonstrate that Ms. Weeks’s identification was confiscated for the
purpose of preventing its fraudulent use to obtain illegal entry into his club and, moreover, the
identification was obtained “not from Ms. Weeks but from an under[age] would[-]be patron.”
See Pl.’s Opp’n at 9–10 (emphasis omitted). Thus, according to the plaintiff, “the confiscation of
the subject items by the staff of [t]he Park had nothing to do with depriving Ms. Weeks [of] ‘a
right to the property or a benefit of the property.’” Id. at 9.
The plaintiff freely admits to his overarching motive to protect his business by
disallowing entry of an underage would-be patron but, no matter how exculpatory this
motivation, he also admits that, to this end, he acted in a manner designed to deprive Ms. Weeks
of her lawful property by sanctioning the conduct of his employees and refusing to return the
identification document to her. For example, as noted above, the plaintiff told Sergeant
Clingerman and other officers that he believed Ms. Weeks to have engaged in a crime by
providing her identification to an underage potential patron and that he confiscated the
identification to prevent such use. See FAC ¶¶ 43–52, 141. These statements by the plaintiff,
along with Ms. Weeks’s complaint, more than suffice to “warrant a prudent man in believing”
that the plaintiff intended to deprive another person of the identification without authority to do
so. Beck, 379 U.S. at 91. While the plaintiff now “explain[s]” that “[h]e did not know Fiona
Weeks at the time of this particular incident,” and thus did not know at the time he denied her
request for the identification’s return that it rightfully belonged to her, Pl.’s Opp’n at 7, this
clarification is of no moment. The plaintiff has alleged no facts suggesting that he made any
such clarification to Sergeant Clingerman or any other officer prior to his arrest and prosecution.
More significantly, the plaintiff was without authority to take the identification—which,
indisputably, did not belong to the plaintiff, or any other staff member at the Park—from any
person, regardless of his subjective beliefs as to such person’s legal entitlement to possess or use
the identification, his intention of preventing identity fraud, or his concern that future illegal uses
of the identification “could endanger his livelihood and liquor license.” Pl.’s Opp’n at 10. 4
For these reasons, Sergeant Clingerman is entitled to qualified immunity. The plaintiff
has failed to allege facts demonstrating a lack of probable cause and thus has not alleged a
violation of his constitutional rights. Accordingly, the plaintiff’s § 1983 false arrest and
malicious prosecution claims are dismissed.
The Plaintiff’s Federal Claim Against the District Fails
The plaintiff alleges that the District “failed to properly supervise, train and discipline
MPD officers with respect to proper procedures for handling and monitoring the confiscation and
storage of false IDs use by underage would[-]be patrons of businesses serving alcoholic
Even assuming that the plaintiff had established a lack of probable cause such that he “ma[d]e out a
violation of a constitutional right” in satisfaction of the first prong of the qualified immunity analysis, Pearson, 555
U.S. at 232, on the ground that the officer omitted information from the warrant application regarding the plaintiff’s
purported innocent intent to prevent illegal entry of underage persons to the Park, his claims would fail nonetheless
on the second prong of the qualified immunity analysis, which requires that the constitutional violation be apparent
to a reasonable officer in light of clearly established law. See Pearson, 555 U.S. at 231. Nothing in D.C. Code
§ 22-3211 suggests a defense for persons who intend to deprive another of her property but solely for the purpose of
preventing another crime, and thus the plaintiff’s contentions are, at least, of such “questionable relevance” to the
probable cause determination that Sergeant Clingerman would nevertheless be entitled to qualified immunity.
Whitlock v. Brown, 596 F.3d 406, 413 (7th Cir. 2010) (concluding officer entitled to qualified immunity on the
second prong of the analysis where “a reasonable officer would not have known one way or the other whether the
[plaintiffs’ innocent] explanation for their conduct was material to the probable-cause determination for criminal
conversion under Indiana law” in light of the “breadth of Indiana’s criminal-conversion statute and the apparent
absence of an implied-consent defense”); see Leaver v. Shortess, 844 F.3d 665, 669–70 (7th Cir. 2016) (finding that
qualified immunity applied to bar § 1983 claim against the officer who sought an arrest warrant since it would not
“have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination”
under Wisconsin’s theft-by-lessee statute).
beverages.” FAC ¶ 107. Specifically, the plaintiff contends “the problem of under[age] young
people attempting to gain entry into nightclubs is a major problem in the city,” and “[a]s a result
of the lack of proper training and supervision of officers [on the part of the District], business
owners, such as the plaintiff, are wrongfully exposed to the threat of arrest at the hands of an
ill[-]trained, ill[-]supervised police officer.” Id. ¶¶ 108–09. According to the plaintiff, the
District’s alleged failure to train and supervise its police officers in this regard “constituted a
custom and policy in violation of the constitutional rights of the plaintiff and the citizens of the
District of Columbia pursuant to 42 U.S.C. § 1983.” Id. ¶ 111. In moving to dismiss this claim,
the defendants rely on the Supreme Court’s decision in Monell v. Dep’t Soc. Servs., 436 U.S. 658
(1978), Defs.’ Mem. at 6, which held that a municipality may be liable under 42 U.S.C. § 1983
only where “the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that
[municipality’s] officers,” Monell, 436 U.S. at 690, and asserts that the plaintiff in this case has
failed to allege facts sufficient to establish a “custom or policy,” Defs.’ Mem. at 7.
The defendants’ contentions need not be addressed. “To hold the District liable, the
[plaintiff] must show (1) a Constitutional violation, and (2) that the District was responsible for
that violation.” Doe v. District of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015) (citing Collins v.
City of Harker Heights, 503 U.S. 115, 120 (1992)). As explained above, the plaintiff has failed
to plead facts sufficient to establish a lack of probable cause for issuance by a magistrate of an
arrest warrant, and thus has not made out a violation of any constitutional right. See supra Part
III.A. Consequently, the plaintiff’s § 1983 claim against the District must be dismissed.
The Court Lacks Jurisdiction Over the Remaining Claims
Since the plaintiff’s three federal claims must be dismissed, only state claims remain
against the defendants. While federal district courts have supplemental jurisdiction over state
claims that “form part of the same case or controversy” as federal claims over which they have
original jurisdiction, 28 U.S.C. § 1367(a), where the federal claims on which a federal court’s
jurisdiction relied have been dismissed, the court has discretion in deciding whether to retain
supplemental jurisdiction over the remaining state claims, see 28 U.S.C. § 1367(c)(3);
Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1265–66 (D.C. Cir.
1995). In exercising this discretion, the court balances the traditional “values of judicial
economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988). “[I]n the usual case in which all federal-law claims are dismissed before trial, the
balance of [these] factors . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Id. at 350 n.7; see also United Mine Workers v. Gibbs, 383 U.S.
715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, . . . the state claims
should be dismissed as well.”).
In the instant case, each of these factors weighs in favor of dismissing the plaintiff’s state
claims without prejudice. With respect to judicial economy, the plaintiff’s remaining claims
sound in District of Columbia law, with which the District of Columbia courts are more familiar,
and this Court has yet to parse any of those claims. Moreover, the District of Columbia courts
are an equally convenient forum for these non-diverse parties, and principles of comity and
fairness point in favor of allowing these claims to be pursued, if the plaintiff chooses, in the local
court system. See Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005) (“[T]he district
court properly considered comity as well as fairness to the plaintiff in concluding that its
rejection of his non-federal claims would not adversely impact [the] plaintiff’s ability to pursue
those claims in the local court system.” (internal quotation marks and alterations omitted)).
Consequently, the remaining state claims are dismissed without prejudice.
For the foregoing reasons, the defendants’ motion to dismiss is granted. The plaintiff’s
federal claims, in Counts I, II, and III, are dismissed, and the plaintiff’s remaining state claims
are dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c)(3). The Clerk of the United
States District Court for the District of Columbia is directed to close this case. An appropriate
Order accompanies this Memorandum Opinion.
Digitally signed by Hon.
Beryl A. Howell
DN: cn=Hon. Beryl A.
Howell, o=U.S. District
Court for the District of
Columbia, ou=Chief Judge,
Date: 2017.03.03 14:16:25
Date: March 3, 2017
BERYL A. HOWELL
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