Hardaway v. District of Columbia ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LENA HARDAWAY, et al., )
)
Plaintiffs, )
)
v ) Civil Action No. 14-1273 (RJL)
)
DISTRICT OF COLUMBIA, et al., ) E L E
D f d t i are 3 s 2015
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MEMORANDUM OPINION
(August 2 , 2015) [Dkt. #9]
Plaintiffs Lena and Angelene Hardaway (“plaintiffs”) bring this action against the
District of Columbia (“defendant”) 1 for alleged violations of 42 U.S.C. §§ 1983, 1985(3),
and 1986 and the Americans with Disabilities Act (“ADA”) 42 U.S.C. §§ 12131 et seq.,
arising from an encounter with a Metropolitan Police Department officer on June 18,
2013. See generally Compl. [Dkt. #1]. Presently before the Court is the defendant’s
Motion to Dismiss [Dkt. #9]. Upon review of the parties’ pleadings, the relevant law,
and the entire record herein, defendant’s motion will be GRANTED and this case will be
DISMISSED.
‘ In the caption of the Complaint, plaintiffs name Cathy Lanier, the Chief of the Metropolitan Police
Department, and Vincent Gray, former Mayor of the District of Columbia, in their official capacities, as
parties to this action. Although plaintiffs purport to sue these defendants in their individual capacities as
well, see Compl. $1 13, the Complaint alleges no facts to indicate their personal involvement in the events
giving rise to the Complaint. Nor can these defendants be held liable for a violation of Title II of the
ADA. See Alston v. District of Columbia, 561 F. Supp. 2d 29, 37 (BBC. 2008). Accordingly, the Court
will dismiss Chief Lanier and former Mayor Gray as parties to this action, and will treat the Complaint as
if it names the District of Columbia as the sole defendant.
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BACKGROUND
Plaintiffs allege that, on June 25, 2013, they moved into an apartment at 3232
Georgia Avenue, N.W., Unit 605, in Washington, DC. Compl. 11 8. One week earlier,
on June 18, 2013, when “[p]laintiffs had legal possession of unit 605[,] the leasing agent .
. . illegally, negligently [and] forcibly [tried] to evict [them] from their apartment without
a court order.” Compl. 11 8. (emphasis in original). Specifically, plaintiffs contend that
the leasing agent tried “to force Angelene Hardaway . . . to sign another contract without
her lawyer or her disability aide reviewing the contract,” and in the process, the leasing
agent “physically block[ed] [p]laintiffs[’] access to the apartment[] and the loading
dock.” Compl.11 8.
In Lena Hardaway’s view, the leasing agent “was trying to take advantage of
Angelene[’s] disability[] by physically forcing [her] to sign another contract,” and when
she saw this, Lena “called 911.” Compl. 11 8 (emphasis in original). Thereafter, a white
male police officer arrived on the scene. Compl. 11 8. According to plaintiffs, the officer
allegedly refused to identify himself, to speak with the leasing agent, or to otherwise
assist plaintiffs, both because plaintiffs were black women and because Angelene
Hardaway is disabled. See Compl. 1111 8-11. Plaintiffs assert that the officer “had a duty
to identify himself, take action, and file an incident report,” Complaint 1 19, and to
“assist any victim [of an] illegal eviction,” id. 11 16. According to plaintiffs, the police
officer, in failing to take such action, acted pursuant to municipal policies that deprived
them of equal protection of the laws and of the privileges and immunities of citizenship
can be no liability under § 1986 without liability for the predicate offense under §
1985(3)).
D. Angelene Hardaway’s ADA Claim
This brings the Court to plaintiff Angelene Hardaway’s ADA Claim which, like
plaintiffs’ prior allegations, fails to meet the Rule 12(b)(6) threshold. Generally, Title II
of the ADA provides that a qualified individual cannot be deprived of the services,
programs or activities of a local government because of her disability. See Alston v.
District of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C. 2008). “The elements of an ADA
discrimination claim are 1) that the plaintiff is a qualified individual with a disability; 2)
that the public entity denied her the benefits of or prohibited her from participating in the
entity’s services, programs or activities; and 3) that denial or prohibition was ‘by reason
of” her disability.” Id. (citing 42 U.S.C. § 12132). Defendant moves to dismiss Angelene
Hardaway’s ADA claim because she “fails to make [a] prima facie showing” by alleging
“that the District denied her the benefits of its services.” Defs.’ Mem. at 11.
Specifically, defendant submits that a police officer responded to plaintiffs” 911 call, and
that any “disagreement [plaintiff] may have had with the officer’s alleged refusal to stop
an allegedly illegal eviction attempt and to file a police report is beside the point.” Id.
Plaintiffs, however, make no mention of plaintiff Angelene Hardaway’s ADA claim in
their opposition to defendant’s Motion, and thereby concede defendant’s arguments for
dismissal of the ADA claim. See, e. g., Burnett v. Sharma, 511 F. Supp. 2d 136, 145-46
(D.D.C. 2007) (“[l]f ‘a plaintiff files an opposition to a dispositive motion and addresses
only certain arguments raised by the defendant, a court may treat those arguments that the
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plaintiff failed to address as conceded.”’) (quoting Buggs v. Powell, 293 F. Supp. 2d 135,
141 (D.D.C. 2003)). Accordingly, the Court finds that plaintiff Angelene Hardaway’s
ADA claim fails.
CONCLUSION
For the foregoing reasons, the Court concludes that plaintiffs’ complaint fails to
state a claim upon which relief can be granted and, accordingly, GRANTS defendant’s
Motion to Dismiss and DISMISSES the case. An Order is issued separately.
United States District Judge
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conferred by the Constitution. See Compl. W 13—14, 21-24, 29, 31. Plaintiffs now
demand injunctive relief and compensatory and punitive damages. Compl. 11 36.
DISCUSSION
Defendant makes two overarching arguments in its Motion to Dismiss. It first
alleges that plaintiff Lena Hardaway lacks standing to pursue her claim. Second, it
argues that plaintiffs fail to state a claim on which relief may be granted. For the reasons
discussed herein, the Court finds that as to the first argument, plaintiff Lena Hardaway
does in fact have standing to pursue her claims. Unfortunately for plaintiffs, however,
the Court agrees with defendant’s second argument and concludes that both plaintiffs
have failed to state claims on which relief may be granted. The Court addresses each
issue in turn, beginning with standing.
1. Standing
Defendant first argues that “Lena Hardaway lacks Article III standing.” Mem. in
Support of DC. Defs.’ Mot. to Dismiss (“‘Defs.’ Mem.”) at 3 [Dkt. #9-1]. Because a
motion to dismiss for lack of standing is considered a challenge to the Court’s subject
matter jurisdiction, the Court considers defendant’s Motion as a motion for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1). See Haase v. Sessions, 835 F.2d
902, 906 (DC. Cir. 1987).
“Federal courts are courts of limited jurisdiction,” having “only that power
authorized by Constitution and statute[.]” Kokkonerz v. Guardian Life Ins. Co. of Am,
511 US. 375, 377 (1994) (citations omitted). “It is to be presumed that a cause lies
outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon
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the party asserting jurisdiction[.]” Id. (citations omitted). “[T]he irreducible
constitutional minimum of standing contains three elements.” Lujan v. Defenders of
Wildlife, 504 US. 555, 560 (1992). These elements are: “(1) a concrete and
particularized injury in fact that is (2) fairly traceable to the defendant’s alleged unlawful
conduct and (3) likely to be redressed by a favorable decision.” Hein v. Freedom from
Religion Found, Inc, 551 US. 587, 619 (2007) (citing Lujan, 504 US. at 560—61)
(internal quotation marks omitted).
Although the Complaint avers that “Angelene Hardaway suffered injury,”
defendant argues that the Complaint “does not allege any injury against . . . Lena
Hardaway, who, according to the complaint, assisted . . . Angelene Hardaway by calling
911 and speaking with the officer.” Defs.’ Mem. at 4. Because Lena Hardaway “does
not allege any personal injury,” defendant contends she “lacks standing and cannot
maintain this suit.” Id. I disagree. I disagree. Lena Hardaway, who conversed with the
police, and who claims to have been harmed by the officer’s discriminatory conduct, was
equally aggrieved by the police officer’s alleged misdeeds. See Compl. 1] 10. Thus, she,
like Angelene Hardaway, suffered alleged violations of her Constitutional rights that are
fairly traceable to defendant’s actions and, which, moreover possess legal remedies. See
Compl. fl 1 1. There is little question that this meets the threshold for Article III standing.
See Hein, 551 US. at 619. “The party invoking federal jurisdiction bears the burden of
establishing [the] elements” of standing, Lujan, 504 US. at 561, and I find, for the
reasons discussed above, that plaintiff Lena Hardaway manages to do so here.
Defendant’s Motion to dismiss for lack of standing is therefore DENIED.
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II. Dismissal Under Rule 12(b)(6)
I turn next to defendant’s Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) on the ground that the Complaint fails to state claims upon which
relief can be granted. See generally Defs.’ Mem. at 2-3.
Although plaintiffs need not set forth “detailed factual allegations” to withstand a
Rule 12(b)(6) motion, in order to survive a challenge of this nature, plaintiffs must
furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Bell Atlantic Corp. v. T wombly, 550 US. 544, 555 (2007). The Court,
in reviewing a motion to dismiss, “must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 US. 89, 94 (2007). The complaint
“is construed liberally in [plaintiffs’] favor, and [the Court should] grant [plaintiffs] the
benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). However, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 US. at 555).
The Court, as such, need not accept inferences that are not supported by the facts alleged
and legal conclusions drawn by plaintiff. See id; Browning v. Clinton, 292 F.3d 235, 242
(DC. Cir. 2002). Although pro se plaintiffs are held to “less stringent [pleading]
standards” than those governing lawyers, Erickson, 551 US. at 94, that does not obviate
their duty to plead facts permitting an inference of “more than the mere possibility of
misconduct,” Atherton v. District of Columbia Ofiice oft/1e Mayor, 567 F.3d 672, 681-82
(DC. Cir. 2009) (quoting Iqbal, 556 US. at 679); see Brown v. Whole Foods Market
Grp.,1nc., 789 F.3d 146, 150 (DC. Cir. 2015).
A. Equal Protection
The Court first addresses plaintiffs’ assertion that defendant violated the equal
protection clause of the Fifth Amendment. Defendant argues that “plaintiffs have not
presented any allegations, other than that they are African-American and the officer who
responded was white, to make out an equal protection claim.” Defs.’ Mem. at 4.
According to defendant, they neither “discuss similarly situated individuals, . . . [n]or . . .
allege any facts showing discriminatory purpose.” Id. at 4—5. I agree.
The equal protection clause requires that “all persons similarly situated should be
treated alike.” City ofCleburne, Tex. v. Cleburne Living Ctr., 473 US. 432, 439 (1985).
To prevail on their claim, plaintiffs must point to a quantum of dissimilar treatment
afforded to otherwise identically-situated individuals. This, they have not done.
Plaintiffs here assert that the police officer “would [have] stop[ped] the illegal eviction
and enforce[d] tenant rights if [they] were White,” but opted instead to “violate[] their
right to equal protection by providing them inadequate police protection based on their
status as a disable[d] woman and African American.” Compl. W 11. Altogether missing
from plaintiffs’ Complaint, however, are factual allegations that this purported conduct
violates equal protection. Plaintiffs’ Complaint fails, for example, to identify affirmative
“rights” of which they were deprived. Nor, as a practical matter, could plaintiffs identify
any such rights, given that the District of Columbia is “under no general duty to provide
public services, such as police protection, to any particular individual citizen.” Warren v.
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District of Columbia, 444 A.2d 1, 4 (DC. 1981) (en banc). More importantly, plaintiffs’
Complaint fails to allege any similarly situated individual or individuals to whom these
supposed rights were afforded. In the absence of such allegations, plaintiffs simply have
not articulated a claim on which relief may be granted. See Mpras v. District of
Columbia, 74 F. Supp. 3d 265, 271-72 (BBC. 2014) (dismissing plaintiff’s equal
protection claim in light of plaintiff‘s failure to “allege any facts . . . about who these
other persons are or how they were similarly situated”). In sum, plaintiffs have failed to
marshal sufficient facts to satisfy their burden. See BEG Inv., LLC v. Alberti, _ F. Supp.
3d _, 2015 WL 1324416, at *12 (BBC. Mar. 24, 2015) (dismissing plaintiff’s case
where plaintiff’s complaint lacked “adequate factual allegations to make its conclusory
assertions of discrimination plausible rather than merely possible”). For this reason, the
Court finds that plaintiffs have failed to state a claim under the equal protection Clause
for which relief may be granted.
B. Privileges and Immunities of Citizenship
Plaintiffs next argue that defendant violated the Privileges and Immunities Clause
of the Fourteenth Amendment. This contention fails to pass muster as a matter of law.
The Privileges and Immunities Clause is set forth in the Fourteenth Amendment of the
United States Constitution. See US. Const., art. IV, § 2. Unfortunately for plaintiffs, the
Fourteenth Amendment applies only to states and not, as plaintiffs have alleged, to the
District of Columbia. See Bolling v. Sharpe, 347 US. 497, 499 (1954). Furthermore, the
Fourteenth Amendment’s privileges and immunities clause pertains only to one state’s
discrimination against residents of another state, which is plainly not the case here.
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Indeed, plaintiffs here only allege violations by the District of Columbia against its own
residents. See United Bldg. & Constr. Trades Council of Camden Cnty. & Vicinity v.
Mayor and Council of the City of Camden, 465 U.S. 208, 215-16 (1984) (“The Clause is
phrased in terms of state citizenship and was designed to place the citizens of each State
upon the same footing with citizens of other States, so far as the advantages resulting
from citizenship in those States are concerned.” (citation and internal quotation marks
omitted)).
Even if plaintiffs had adequately alleged constitutional violations—which they did
not—the analysis is not complete. Rather, because defendant is a municipality, the
ordinary rules of respondeat superior do not apply. See Baker 1). District of
Columbia, 326 F.3d 1302, 1306 (DC. Cir. 2003); Runnymede—Piper v. District of
Columbia, 952 F. Supp. 2d 52, 56 (D.D.C. 2013) (“It is well—established that a
municipality cannot be held responsible for [its] agents’ constitutional torts under
a respondeat superior theory, because the doctrine of respondeat superior liability does
not apply to [§] 1983 claims.” (citation omitted)). The District of Columbia can be held
liable under 42 U.S.C. § 1983 only if it “is itself responsible for an unconstitutional
deprivation of rights.” A tchinson v. District of Columbia, 73 F .3d 418, 420 (DC. Cir.
1996) (citing Monell v. Dep ’t ofSoc. Servs. ofthe City ofNew York, 436 U.S. 658, 690-
91 (1978)). In other words, “a municipality can be liable under § 1983 only where its
policies are the moving force behind the constitutional violation.” City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (citations, brackets and internal quotation marks
omitted); see Warren v. District of Columbia, 353 F.3d 36, 38 (DC. Cir.
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2004) (“[M]unicipalities are liable for their agents’ constitutional torts only if the agents
acted pursuant to municipal policy or custom”).
Plaintiffs have not alleged any such policies or procedures. They rely instead on
rote assertions that they “are not required to plead anything more than they have already
pleaded in the complaint.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss and Summ. J. (“Pl.’s
Opp’n”) at 5 [Dkt. #11]. As evidence of this belief, they repeat the conclusory allegation
that the officer “failed to file a police report or act to protect both plaintiffls’] rights”
because of the “color of [their] skin, sex and/or disability.” 1d. This simply does not
suffice. They fail, moreover, to identify any municipal custom or practice, the
application of which violated plaintiffs’ constitutional rights.
In sum, the Court has reviewed plaintiffs’ opposition to defendant’s motion, and
has searched in vain for any non-conclusory allegation of a violation of a
constitutionally-protected right. Having found no such allegations, the Court dismisses
plaintiffs” claims under the privileges and immunities clause.
c. Claims Under 42 U.S.C. §§ 1985(3) and 1986
Plaintiffs also claim that defendant violated 42 U.S.C. § 1985(3), which provides a
cause of action “against two or more persons who participate in a conspiracy motivated
by class-based discriminatory animus.” Atherton, 567 F.3d at 688; see Grifi’m v.
Breckenridge, 403 US. 88, 101-02 (1971) (concluding that “there must be some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action” and the “conspiracy . . . must aim at a deprivation of the equal
enjoyment of rights secured by the law to all”). Unfortunately for plaintiffs, this claim
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fails. To state a claim under § 1985(3), a plaintiff must allege “(1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of
the equal protection of the laws, . . . and (3) an act in fiirtherance of the conspiracy; (4)
whereby a person is either injured in her person or property or deprived of any right or
privilege of a citizen of the United States.” Atherton, 567 F.3d at 688 (citing Martin v.
Malhoyt, 830 F.2d 237, 258 (DC Cir. 1987) (alteration in original)).
Missing from plaintiffs’ Complaint are any allegations to support their theory that
a conspiracy existed or that the conspiracy was aimed at a particular race or class of
persons. Nor, for that matter, do plaintiffs identify the participants in the conspiracy.
Indeed, the only individuals purportedly involved are the former Mayor and the Chief of
Police. However, as agents of the District of Columbia, they exist as a single unit, and
cannot, as a practical matter, enter into a conspiracy, which requires two participants at a
minimum. See, e.g., Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 109 (D.D.C.
2010) (“[T]here can be no conspiracy if the conduct complained of is essentially a single
act by a single entity.” (quoting Gladden v. Barry, 558 F. Supp. 676, 679 (D.D.C.
1983)).
Plaintiffs fare no better with regard to their claim under 42 U.S.C. § 1986, through
which they might have had a cause of action against a person who knowingly fails to
prevent a conspiracy under § 1985. See Bush v. Butler, 521 F. Supp. 2d 63, 70 (D.D.C.
2007). Without a predicate violation of § 1985, however, their claim under § 1986 fails.
See, e.g., Jackson v. Donovan, 856 F. Supp. 2d 147, 150 (D.D.C. 2012) (stating that there
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