Rowe v. District of Columbia , 892 F. Supp. 2d 174 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DEBRA G. ROWE, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1914 (RMC)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Defendant District of Columbia’s Motion to
Dismiss Plaintiff’s Complaint [Dkt. #15] and Plaintiff’s Motion for Ammendment [sic] to
Complaint [Dkt. #21]. For the reasons discussed below, the former will be granted, and the
latter will be denied as futile. 1
I. BACKGROUND
Plaintiff “is a former employee of the District of Columbia Department of
Health[,] HIV/AIDS Administration (DOH/HAA).” Compl. ¶ 4. In November 2004 she
accepted the position of Acting Chief of Housing, id. ¶ 13, and undertook management of a
program, Housing Opportunities for Persons with AIDS (“HOPWA”), id. ¶¶ 4, 13, which
received grant funding from the United States Department of Housing and Urban Development
(“HUD”), see id. ¶¶ 4, 9-11. HOPWA “encompassed the District of Columbia, Southern
1
The Court will deny plaintiff’s Motion for Oral Argument [Dkt. #24] as moot.
1
Maryland (Prince George[’]s, Howard and Charles Counties), Northern Virginia and West
Virginia.” Id. ¶ 4. Since April 2003, HUD representatives had expressed concerns about the
District’s “slow expenditure of HOPWA formula awards,” which could have resulted in the de-
obligation of funds if the District did not commit and expend funds within a set time period. Id.
¶ 9. It appears that the selection of plaintiff to serve as Acting Chief of Housing occurred after
“the previous director had jumped the ship,” id. ¶ 12, leaving HOPWA without a manager. In
this capacity, plaintiff also served “as the Department of Corrections Liaison,” id. ¶ 4, and “she
chaired the DOC Comprehensive Continuity of Care Committee comprised of Government,
Federal and non-profit organizations,” id. ¶ 42.
Defendant David Catania (“Catania”), an At-Large member of the Council of the
District of Columbia, was the Chair of the Council’s Committee on Health. Id. ¶ 5. At a hearing
in November 2003, Catania notified plaintiff of his intention to spend “4 million dollars in the
HAA Housing coffers.” Id. ¶ 14. Upon plaintiff’s review of relevant “expenditure records, [she]
informed [Catania] and his Policy Director Tori Fernandez Whitney that the funds could not be
spent by the District [because they] belonged to two jurisdictions that were ‘intra-district sub-
grantees’ of DOH/HAA (Prince George[’]s County and Northern Virginia).” Id. Apparently
these jurisdictions had not spent their allotted amounts, but the period within which they were
required to obligate and spend the funds had not expired. See id. The District had spent its
funds, “but had grossly not reconciled [its] funding for Fiscal Years (FY) 2001 thru [sic] the first
quarter of FY 2005.” Id. “Plaintiff followed HUD’s advice, hired [a] contractor and reconciled
(expenditures, beneficiary data and community[-]based providers[’] budgets) for each of those
program years.” Id.
2
According to plaintiff, Catania “was enraged by [her] explanation and
consistently insisted that ‘the funds be spent the way that he wanted,’” notwithstanding
plaintiff’s repeated assertions that spending the funds as Catania proposed would not comply
with HUD regulations. Id. ¶ 15. By March 2006, Catania allegedly both “wanted the money and
wanted [plaintiff] fired.” Id. ¶ 16. Catania took action by way of budget legislation to effect the
allocation of “$2 million of [HOPWA] resources . . . to expand the housing stock available to
eligible persons living with HIV/AIDS in the District of Columbia,” and an additional “$2
million . . . for the establishment of a long-term mortgage assistance program for eligible persons
living with HIV/AIDS in the District of Columbia.” Id. ¶ 18. The Director of DOH received a
letter from HUD’s Director of Community Planning and Development expressing concerns
arising from the Council action, with a reminder to DOH/HAA “that . . . any substantial changes
to the design of the city’s HOPWA program would require an amendment to the city’s
Consolidated Plan and must be consistent with HOPWA program regulations.” Id. ¶ 19.
Plaintiff received a telephone call from Whitney at Catania’s behest and was
asked “to come down to [C]ouncil chambers,” at which time she was “questioned for nearly
three . . . hours about the HOPWA program.” Id. ¶ 20. Plaintiff characterized the meeting as an
“inquisition.” Id. By February 2007, “[t]he harassment became more consistent and
unbearable,” prompting her to seek the assistance of Congresswoman Eleanor Holmes Norton to
whom she sent a letter expressing her concerns and requesting an investigation of “what [she]
deemed . . . unethical practices” of Catania and Whitney. Id. ¶ 21.
Plaintiff obtained a copy of an email message dated February 5, 2007, from Bobbi
Smith to Catania and Whitney with notice that “Plaintiff was about to blow the whistle on him.”
3
Id. ¶ 22. The email also “contained an allegation regarding Plaintiff and the program Miracle
Hands and others that were not mentioned by name and other allegations.” 2 Id. This email
apparently had been printed, copied, and distributed to plaintiff’s colleagues in order “to defame
her character,” id. ¶ 23, and “was used as the basis for Miracle Hands to be raided.” Id. ¶ 43.
Plaintiff believed that Catania “had intentions for . . . Whitney to become the
Senior Deputy Director of DOH/HAA,” and the arrangement only awaited confirmation by the
Mayor. Id. ¶ 26. Plaintiff’s letter to Congresswoman Norton, however, “put a cloud over that
appointment,” and, instead, “Whitney was appointed Senior Deputy Director of [the] Addiction[]
Prevention and Recovery Administration.” Id. Congresswoman Norton apparently referred
plaintiff’s letter to the Office of the Inspector General, id. ¶ 27, a representative of which
interviewed plaintiff by telephone in May 2007, id. ¶ 28.
On September 19, 2007, about six months after plaintiff’s letter to
Congresswoman Norton, agents of the Federal Bureau of Investigation (“FBI”) raided plaintiff’s
home. Id. ¶¶ 30-32. The agents arrived in “six . . . cars and four . . . SUVs which gave the
appearance of a ‘drug raid’ to [plaintiff’s] neighbors.” Id. ¶ 43. Days later, she became aware of
a rumor circulating that she had been arrested, that “the FBI raided her ‘mansion on her ranch
and her spanking brand new Mercedes was in the driveway’ (none of which was true).” Id. ¶ 32.
Bloggers and newspaper reporters contacted the Director of DOH for comment, id., and a
representative from the Office of the Mayor asked plaintiff “to ‘explain her side of the story to
2
Miracle Hands was a service provider and recipient of DOH/HAA grant funds. See
Compl. ¶¶ 43, 50. Miracle Hands apparently was thought to have used grant funds for the
renovation of a warehouse, see id. ¶ 50, for use as a job training facility, id. ¶ 54. Cornell Jones
was the Executive Director of Miracle Hands. See id. ¶¶ 4, 43. According to plaintiff, Jones
“had been outspoken about some of [Catania’s] tactics,” and his “remarks inspired [Catania] to
[]target” both plaintiff and Jones. Id. ¶ 43.
4
him and to send him any relevant support[ing] documents that she had.’” Id. Plaintiff complied.
Id.
On October 22, 2007, Shannon Hader, the new Senior Deputy Director, id.¶ 33,
“reassigned [plaintiff] from her duties and basically ‘stripped’ her . . . of all of her
responsibilities.” Id. ¶ 34. By December 2007, plaintiff “began to have frequent chest pain as
she continued to work hard, try to maintain her faith in the system and to do the best that she
could at her job, but the strain was too much.” Id. ¶ 38. She suffered a heart attack on January 6,
2008, underwent surgery, and was instructed “to be off from work for approximately nine . . .
weeks.” Id. ¶ 39. Her requests for medical leave were denied. Id. ¶ 40.
By early 2008, Gunther Freehill (“Freehill”), plaintiff’s supervisor (mentioned by
plaintiff in her letter to Congresswoman Norton) “became very hostile and began micro
managing Plaintiff’s work” and “undermining her professional relationships” with colleagues
and community-based service providers. Id. ¶ 29. Plaintiff was terminated on April 8, 2008. Id.
¶ 41. Hader cited plaintiff’s lack of “vision to move the program in [Hader’s] direction,” as well
as “HUD audit findings” for fiscal years 2001 through the first quarter of 2005, “even though
Plaintiff saved the program from being de-obligated of 27 million dollars by HUD.” Id.
According to plaintiff, she lost her job “for refusing [Catania’s] requests and speaking up about
the wrongdoing.” Id. ¶ 58.
Plaintiff claimed to have been ‘“blackballed’ throughout D.C. Government and
the community-based programs,” and was unable to secure employment, notwithstanding “her
longstanding professional relationships with them” through her chairmanship of the Department
of Corrections’ Comprehensive Continuity of Care Committee. Id. ¶ 42. For example, she was a
5
candidate for a position with the Department of Corrections, yet did not get the job after “DOC
received an email from Shannon Hader” containing “a veiled threat” that hiring plaintiff would
mean that DOH “would not do business” with Corrections any longer. Id. She believed “anyone
who hired [her] under the health care umbrella would have [its] funding threatened by
[Catania].” Id.
“Plaintiff was never charged with any wrongdoing.” Id. ¶ 43. After the close of
the FBI investigation, Catania allegedly ‘“recruited’ the Washington Post into his vendetta and
prompted [its] investigation into the HAA programs.” Id. ¶ 44. A Washington Post reporter
“was dead set on a negative portrayal of Plaintiff based on some hearsay of [Catania’s] cohorts”
whose identities the reporter refused to reveal. Id. ¶ 45. Plaintiff “could [not] appropriately
respond” to the reporter’s questions during an interview in June 2008 without knowledge of the
reporter’s sources. Id. An article published in October 2008 “made Plaintiff the scapegoat” for
problems which had “plagued [the agency] for years.” Id. ¶ 46. An article written by Jeffrey
Anderson and published in August 2011 in The Washington Examiner contained similar “untrue
statements . . . regarding Plaintiff,” id. ¶ 47, and reported that plaintiff “work[ed] for a company
– run by a former drug kingpin – that she funded as a city employee,” that is, Miracle Hands. Id.
And an article written by Freeman Klopott and published on August 30, 2011 in The Washington
Times erroneously attributed to plaintiff a grant awarded to Miracle Hands for the renovation of
a warehouse. Id. ¶ 50. Plaintiff disputed the content of these and other articles. See id. ¶¶ 51-
52. And after “a very promising job interview the week prior to the Washington Post article,”
plaintiff received a telephone call from the prospective employer’s Executive Director and was
notified that the organization “could not hire her even though she really was the best candidate
for the position.” Id. ¶ 60.
6
Plaintiff dos not challenge her termination. 3 Rather, she maintains that
defendants’ “defamation of her character has deterred her from securing meaningful employment
in her field of expertise.” Id. ¶ 58. She attributes her inability to secure employment to
defendants’ actions which have “defamed [her] in the worst way.” Id. “Potential employers
Google [plaintiff] and see the negative press.” Id.
II. DISCUSSION
A. Defendants In This Action
The Court is mindful that plaintiff is not a lawyer and her pleading is not held to a
standard otherwise applicable to a pleading prepared by a lawyer. See Haines v. Kerner, 404
U.S. 519, 520 (1972). Plaintiff’s lack of legal training appears to have created some confusion as
to the intended defendants in this action.
The Court construes the complaint as one bringing a civil rights claim under 42
U.S.C. § 1983, see id. ¶¶ 62-63 (Count I), and common law claims of defamation and intentional
infliction of emotional distress (“IIED”), see id. ¶¶ 67-75 (Count II) and 77-80 (Count III),
against the District of Columbia, David Catania, Gunther Freehill, Jeffrey Anderson and
3
Had plaintiff challenged her termination, it is probable that the Comprehensive Merit
Personnel Act (“CMPA”), see D.C. Code § 1-601.01 et seq., would apply, and that its provisions
would deprive this Court of subject matter jurisdiction over any claim, including common law
tort claims such as defamation and emotional distress, arising from her termination. See
Robinson v. District of Columbia, 748 A.2d 409, 411 (D.C. 2000) (“With few exceptions, the
CMPA is the exclusive remedy for a District of Columbia public employee who has a work-
related complaint of any kind.”); District of Columbia v. Thompson, 593 A.2d 621, 635 (D.C.
1991) (holding that the CMPA “preclude[s] litigation of [the plaintiff’s] emotional distress and
defamation claims, in the first instance, in Superior Court”).
7
Freemon Klopott. The caption of the complaint, however, suggests a different interpretation. It
lists the defendants as follows:
DISTRICT OF COLUMBIA
A Municipal Corporation
Serve: DAVID CATANIA
1350 Pennsylvania Ave.
Washington, D.C., 20004
And
DISTRICT OF COLUMBIA
A Municipal Corporation
Serve: GUNTHER FREEHILL
999 North Capitol Street, N.E.
Washington, D.C., 20002
And
JEFFREY ANDERSON
3600 New York Avenue, N.E.
Washington, D.C., 20005
And
Freemon Klopott
1015 15th Street, N.W.
Washington, D.C. 20005
Defendants[.]
Compl. at 1 (caption) (emphasis in original). As the caption is drafted, it appears to identify
three defendants -- the District of Columbia, Jeffrey Anderson, and Freeman Klopott – and
directs that service of process on the District of Columbia be effected by serving Catania and
Freehill. A fair reading of the complaint reflects plaintiff’s intention to name Catania and
Freehill as defendants to this action. See, e.g., Compl. ¶¶ 5-6 (respectively, referring to Catania
as “Defendant 1” and Freehill as “Defendant 2”).
8
On or about November 14, 2011, the Clerk of Court issued four summonses for
three defendants: Anderson, Klopott, and the District of Columbia. 4 In this case, it appears that
summonses for service on the District of Columbia identified David Catania and Gunther
Freehill as the intended recipients – but neither is authorized to accept service on the District’s
behalf. See Mem. of P. & A. in Supp. of Def. District of Columbia’s Mot. to Quash Pl.’s Proof
of Service [Dkt. #5] at 6; Statement of P. & A. in Supp. of Def. David Catania’s Consent Mot. to
Quash Pl.’s Proof of Service [Dkt. #7] at 4. Service of process since has been effected properly
on the District of Columbia. Catania, Freehill, Anderson and Klopott have not been served and
no counsel has entered an appearance on behalf of these defendants.
“[F]ederal courts lack the power to assert personal jurisdiction over a defendant
‘unless the procedural requirements of effective service of process are satisfied,’” Mann v.
Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (citing Gorman v. Ameritrade Holding Corp., 293
F.3d 506, 514 (D.C. Cir. 2002)) (other citations omitted), and “such is so even if a defendant had
actual notice,” DiLella v. Univ. of the Dist. of Columbia David A. Clarke Sch. of Law, No. 07-
0747, 2009 WL 3206709, at *1 (D.D.C. Sept. 30, 2009) (citation omitted). If a defendant has not
been properly served, the Court “ordinarily would be powerless to proceed with the case” as
against that defendant. Williams v. GEICO Corp., 792 F. Supp. 2d 58, 66 (D.D.C. 2001)
(citation omitted).
Here, plaintiff is proceeding not only pro se but also in forma pauperis. She may
rely on the Clerk of Court and the United States Marshals Service to effect service of process on
her behalf. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2). The Court ordinarily does not
4
Because service on the District of Columbia requires service on both the Mayor and
Attorney General of the District of Columbia, see Fed. R. Civ. P. 4(j)(2); Super. Ct. Civ. R.
4(j)(1), the Clerk ordinarily issues a separate summons for each official.
9
penalize a plaintiff for failing to effect service in a situation such as this by dismissing a
complaint for insufficient or improper service of process without first allowing plaintiff the
opportunity to assist the court officers with curing any service deficiencies. See Moore v.
Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); Dominguez v. District of Columbia,
536 F. Supp. 2d 18, 23 (D.D.C. 2008). Even if the service deficiencies were cured, however, as
the Court discusses below, there are independent bases on which to dismiss this complaint.
B. Plaintiff Fails to State a § 1983 Claim Against the District of Columbia
Plaintiff purports to bring a claim against the District of Columbia under 42
U.S.C. § 1983, see Compl. ¶¶ 61-65 (Count I), which in pertinent part provides:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects . . . any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983. In order to state a claim under § 1983 for a violation of a constitutional right,
a complaint must allege facts sufficient to support a reasonable inference that (1) a person (2)
acting under color of state, territorial, or District of Columbia law (3) subjected the plaintiff or
caused the plaintiff to be subjected (4) to the deprivation of a right secured by the Constitution or
laws of the United States. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 829 (1985).
Here, plaintiff claims that she was denied “the forum that was available (a city council hearing or
straight forward interview) necessary to address any signs of impropriety that have been
repeatedly alleged from November 2005 to the present.” Compl. ¶ 62. She further alleges that
Catania “has a custom of vindictiveness and malicious vilification and slander,” id. ¶ 63, and that
10
these defendants’ actions were “taken in accordance with this policy, custom or practice,” id. ¶
65.
The District moves to dismiss the § 1983 claim because plaintiff “bases [it] on an
interest that is not protected by the Constitution.” Def.’s Mem. at 5. Noting the repeated
references to defamation and damage to plaintiff’s reputation throughout the complaint, the
Court presumes that the interest plaintiff asserts is her reputation. A person’s interest in her
reputation is not a constitutionally protected interest, however. Defamation is a common law
claim, which alone does not rise to the level of a civil rights claim over which this Court has
subject matter jurisdiction. See Paul v. Davis, 424 U.S. 693, 712 (1976) (“Petitioner’s
defamatory publications[, distributing a flyer listing respondent as an “active shoplifter,”]
however seriously they may have harmed respondent’s reputation, did not deprive him of any
‘liberty’ or ‘property’ interests protected by the Due Process Clause.”). 5
If plaintiff were to proceed on a constitutional defamation claim, there are two
theories on which she could rely. A “reputation plus” claim requires allegations of “defamation
‘in the course of the termination of employment.’” O’Donnell v. Barry, 148 F.3d 1126, 1140
(D.C. Cir. 1998) (quoting Paul, 424 U.S. at 710). Alternatively, she could proceed on the theory
that “the combination of an adverse employment action and ‘a stigma or other disability . . .
5
Even if plaintiff were to bring a civil rights claim against Catania in his individual
capacity under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971), the claim would fail. At most, Catania’s statements defamed plaintiff and harmed her
reputation in the eyes of then-current or prospective employers. “Defamation, by itself, is a tort
actionable under the laws of most States, but not a constitutional deprivation.” Siegert v. Gilley,
500 U.S. 226, 233-34 (1991). Because plaintiff’s Bivens claim against Catania cannot survive,
the Court will deny plaintiff’s motion to amend the complaint, through which she purported to
clarify that Catania is “to be named in his personal capacity.” Mot. for Am. to Compl. [Dkt.
#21] at 1.
11
foreclosed [the plaintiff’s] freedom to take advantage of other employment opportunities.’” Id.
at 1141 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)) (brackets in original).
Neither of these scenarios is apparent in the complaint. Plaintiff makes no direct connection
between defendants’ alleged defamatory statements and plaintiff’s termination. Rather, her
focus is on the alleged damage to her reputation caused by the publication of articles years after
her termination about the management, or mismanagement, of HOPWA grant funds.
Furthermore, in order “[t]o impose liability on the District under . . . § 1983,
plaintiff must show ‘not only a violation of [her] rights under the Constitution or federal law, but
also that the District’s custom or policy caused the violation.’” Feirson v. District of Columbia,
506 F.3d 1063, 1066 (D.C. Cir. 2007) (quoting Warren v. District of Columbia, 353 F.3d 36, 38
(D.C. Cir. 2004)). Recognizing that, “[a]t the pleading stage, only an allegation of the existence
of a policy, practice, or custom and its causal link to the constitutional deprivation suffered is
required,” Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 64 (D.D.C. 2007), it is not enough
to allege in conclusory fashion, as plaintiff has done here, that defendants’ actions were “taken in
accordance with [an unspecified] policy, custom or practice.” Compl. ¶ 65. Nor can the District
of Columbia be held responsible for Catania’s alleged unconstitutional actions on a theory of
respondeat superior or vicarious liability. 6 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Graham
v. Davis, 880 F.2d 1414, 1421 (D.C. Cir. 1989) (citing Monell v. Dep’t. of Social Servs. of the
City of New York, 436 U.S. 658, 691 (1978)).
6
Moreover, if Catania’s actions were outside the scope of his official duties, the District of
Columbia could not be held liable on a theory of respondeat superior. See Evans v. District of
Columbia, 391 F. Supp. 2d 160, 169 (D.D.C. 2005). Alternatively, if Catania were acting within
the scope of his official duties, he might be protected by the doctrine of official immunity. See
id.12
C. The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s Remaining Claims
“The district court[] may decline to exercise supplemental jurisdiction over a
claim . . . if . . . [it] has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Upon the dismissal of plaintiff’s § 1983 claim against the District of Columbia, the
remaining claims -- defamation and IIED -- are common-law claims over which this Court does
not have original jurisdiction. “[I]n the usual case in which all federal-law claims are dismissed
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine --
judicial economy, convenience, fairness, and comity -- will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Shekoyan v. Sibley Int’l, 409 F.3d 414, 424
(D.C. Cir. 2005) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
The District of Columbia is the only defendant properly served with process over
which this Court may exercise personal jurisdiction. The complaint fails to state a claim under §
1983 against the District upon which relief can be granted, and therefore, the District’s motion to
dismiss will be granted. Catania, Freehill, Klopott and Anderson have not been served, and the
Court has no personal jurisdiction over them at this time. Even if service of process had been
effected properly, the claims against these putative defendants are not federal claims over which
this Court has original jurisdiction. In these circumstances, the Court declines to exercise
jurisdiction over the remaining tort claims. See Redrick v. District of Columbia Dep’t of Corr.,
No. 96-7131, 1997 WL 195482 at *1 (D.C. Cir. Mar. 31, 1997) (per curiam) (finding that district
court did not err in declining to exercise supplemental jurisdiction over negligence claim after
constitutional claims had been dismissed). If Plaintiff wishes to proceed against the individuals
she must do so in Superior Court.
13
III. CONCLUSION
The complaint fails to state a claim under 42 U.S.C. § 1983 against the District of
Columbia upon which relief can be granted. Its motion to dismiss will be granted, and plaintiff’s
motions to amend the complaint and for an oral hearing will be denied. An Order accompanies
this Memorandum Opinion.
DATE: September 24, 2012 ___________/s/___________
ROSEMARY M. COLLYER
United States District Judge
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