Jackson v. Donovan ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Ronald Jackson, :
:
Plaintiff, :
v. : Civil Action No. 11-1213 (CKK)
:
Shaun Donovan et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiff, a District of Columbia resident, is suing Shaun Donovan, Secretary of the
United States Department of Housing and Urban Development (“HUD”), and four non-federal
individuals connected to the James Apartments managed by the District of Columbia Housing
Authority (“DCHA”).1 See Mem. Op. and Order (Oct. 17, 2011) [Doc. # 30] (denying motion for
a temporary restraining order and preliminary injunction). The amended complaint [Doc. # 8] is
difficult to follow but plaintiff, proceeding pro se, claims that defendants have “denied [him]
civil rights and privileges afforded an up-to-par resident council.” Am. Compl. at 5. Plaintiff
purports to assert claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq., and 42 U.S.C. §§1983, 1985 and 1986. Id. at 2. In addition, plaintiff claims that defendants
have deprived him of the “freedom of assembly, . . . to vote . . . of association . . . to participate .
. . of movement . . . of privacy . . . to enjoy[,] [and] of choice.” Id. at 5.
Pending before the Court are Defendants Adrianne Todman and Brenda Redding’s
Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. # 10] and
1
In addition to Secretary Donovan, plaintiff sues DCHA Executive Director Adrianne
Todman, Director of DCHA’s Office of Resident Services Brenda Redding, President of the
James Apartment Resident Council Leonard Dixon, and Scott Haapala. The Court dismissed the
complaint against Haapala because of failed attempts to serve him with process. See Order (Dec.
20, 2011) [Doc. # 42].
Secretary Donovan’s Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) [Doc. # 19]. For the
following reasons, the Court will grant both motions, thereby dismissing the claims against these
defendants.2
BACKGROUND
Plaintiff’s amended complaint, read liberally in conjunction with his opposition to
Secretary Donovan’s motion to dismiss, is based on his apparent election in 2011 to the position
of Treasurer of the James Apartment Resident Council (“JARC”) and the alleged failure of
JARC’s President, Leonard Dixon, “to handover the JARC bookkeeping works to the newly
elected Treasurer . . . .”. Pl.’s Opp’n to Fed. Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”) [Doc. # 25]
¶ 2 & Attachments. Plaintiff seeks equitable relief and at least $1,000,000 in monetary damages.
See Am. Compl. at 20-23.
DISCUSSION
1. Todman and Redding’s Motion is Deemed Conceded
By Order of August 17, 2011, plaintiff was directed to respond to Todman and Redding’s
motion to dismiss by September 16, 2011, and was advised that his failure to respond could
result in the granting of the motion as unopposed and dismissal of the complaint against those
defendants. Plaintiff did not file an opposition to this motion; therefore, it will be granted as
conceded. See Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997)
(affirming district court’s reliance on the absence of a response as a basis for treating a motion as
conceded and granting the motion); accord Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294-95
(D.C. Cir. 2004).
2
The remaining defendant, Leonard Dixon, has a motion to dismiss pending, which the
Court will resolve separately.
2
2. Sovereign Immunity Bars the Official-Capacity Claim Against Secretary Donovan
Under the doctrine of sovereign immunity, “the United States may not be sued without its
consent and . . . the existence of consent is a prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be
“unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).
This immunity applies equally to a federal official sued in his official capacity. See Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985).
Plaintiff has cited no authority that waives the government’s immunity to this action, and
the Court has discerned no such authority from the complaint’s vague allegations. See FDIC v.
Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States simply has not rendered itself liable
under [28 U.S.C.] § 1346(b) for constitutional tort claims.”); 42 U.S.C. § 1983 (applicable to
state actors only); Zhu v. Ashcroft, No. 04-1408 (RMC), 2006 WL 1274767 (D.D.C. May 8,
2006), quoting Hohri v. United States, 782 F.2d 227, 245 n.43 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64 (1987) (§§ 1985 and 1986 "by their terms, do not apply to actions against
the United States."); 5 U.S.C. § 704 (conferring jurisdiction under the APA to review “[a]gency
action made reviewable by statute and final agency action for which there is no other adequate
remedy in a court . . . .”). Therefore, the Court will grant Secretary Donovan’s motion to dismiss
the claim against him in his official capacity under Rule 12(b)(1).
3. Plaintiff Has Failed to State a Personal-Capacity Claim Against Secretary Donovan
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
order to ‘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) (quoting Conley v. Gibson, 355
3
U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a
complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ P. 12(b)(6). When presented with a motion to dismiss for failure to state a claim, the
district court must accept as true the well-pleaded factual allegations contained in the complaint.
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, –– U.S. –––,
130 S. Ct. 2064 (2010). Although “detailed factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff
must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555. A complaint that contains “ ‘naked assertion[s]’
devoid of ‘further factual enhancement.’ ” will not survive a Rule 12(b)(6) motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at -
--, 129 S.Ct. at 1949.
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971), the Supreme Court “recognized for the first time an implied private action for damages
against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001). Under Bivens, “it is damages or nothing.” Davis v.
Passman, 442 U.S. 228, 245 (1979) (citation and internal quotation marks omitted). To be held
liable under Bivens, then, the official must have participated personally in the alleged
wrongdoing. Liability cannot be based on a theory of vicarious liability or respondeat superior.
4
See Iqbal, 556 U.S. at ---, 129 S.Ct. at 1948 (“Because vicarious liability is inapplicable to
Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution.”); id. (finding that “respondent
correctly concedes that Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”).
Plaintiff alleges that Secretary Donovan, “[t]he primary policy maker” for HUD, “is now
participating with alleged co-conspirators to withhold the tools from newly elected officers to
carry out their duties to the James Apartments residents.” Pl.’s Opp’n ¶ 1. He refers to three e-
mail messages attached to his opposition that neither mentions Donovan nor implicates him in
any of the alleged misconduct. Because plaintiff has stated no facts establishing Secretary
Donovan’s personal involvement in the alleged wrongdoing, the Court will grant Donovan’s
motion to dismiss the personal-capacity claim under Rule 12(b)(6) for failure to state a claim.
CONCLUSION
For the foregoing reasons, the Court will grant the motion of defendants Adrianne
Todman and Brenda Redding to dismiss and the separate motion of defendant Shaun Donovan to
dismiss. A separate Order accompanies this Memorandum Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
DATE: February 23, 2012 United States District Judge
5