Lyles v. Hughes , 83 F. Supp. 3d 315 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PAMELA LYLES, )
)
Plaintiff, )
)
V ) Civil Action No. 13—0862 (RJL)
)
M. HUGHES, et al., )
> PIEED
Defendants. )
MAR l 9 2015
w merit. U.S. District 5. Bankruptcy
MEMORANDUM OPINION mm mm District of Columbia
(March 2015) [Dkt. #15]
This matter is before the Court on Defendants’ Motion to Dismiss [Dkt. #15]. For
the reasons discussed below, the motion will be GRANTED.
BACKGROUND
This action arises from plaintiff‘s eviction from her former residence in the Park
Ainger Apartments in Southeast Washington, DC. It appears that plaintiff‘s former
landlord initiated proceedings in the Superior Court of the District of Columbia, Civil
Division, Landlord and Tenant Branch, in 201 1. See Amended Complaint (“Am.
Compl.”) 1i 6 [Dkt. #9]. Plaintiff states that her former landlord falsely represented to the
court that she “was delinquent in her rental payments,” Am. Compl. 1i 6, in order to force
her to vacate the premises and make way for a new tenant that could be charged higher
rent, see id. ll 7.
The landlord took steps to evict plaintiff on three occasions. A first attempt on
March 19, 2012 was cancelled apparently because there was no address on the door of
plaintiff's apartment. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) Ex. A
(Writ of Restitution dated March 19, 2012) [Dkt. #17]. A second attempt occurred “on or
about March 26, 2012, [when] Defendant U.S. Marshal Hughes and the landlord jointly
attempted to illegally evict” plaintiff, “even though they both knew or should have known
that there was not [W]rit of Possession or eviction order in effect at that time.” See Am.
Compl. 1] 8. However, “the landlord received a new eviction order of possession on April
13,2012.” Am. Compl.11 9.
“In the early morning of April 20, 2012, two armed US. Marshals and the
landlord entered the Plaintiff‘s apartment and informed her that she was being evicted on
the spot.” Am. Compl. 1] 10. Plaintiff claimed “that she had never received notice of a
default judgment and informed [the Marshals] that . . . she was an attorney . . . who
would never fail to respond to a notice of an eviction hearing.” Am. Compl. 1] 12.
Nevertheless, defendants allegedly “move[d] toward the plaintiff in a threatening manner
when the [p]laintiff demanded to see . . . evidence that she had received notice of an
eviction.” Am. Compl. 1 13. They refused plaintiff’s offer to pay the amount the
landlord claimed was due, Am. Compl. 1] l6, refused her request “to . . . postpone the
eviction so that she could get to the courthouse to nullify the default order,” id. 1] l8, and
refused her request for “time to arrange for someone [to] move her possessions out,” id. 11
19. Further, because plaintiff“was moving too slowly,” Am. Compl. 11 22, defendants
allegedly “grabbed both [of plaintiff’ 5] arms and dragged her through the apartment and
2
unlawful means, the principal element of which is an agreement between the parties to
inflict a wrong against or injury upon another, and an overt act that results in that
damage.” Graves v. United States, 961 F. Supp. 314, 320 (D.D.C. 1997) (internal
quotation marks and citations omitted). “[A]n essential element of a conspiracy claim” is
anmkgmmnflmtmepmfiwtoflmcmmphmwcomeufihnagemnmnornmdmgofme
minds.” Id. (internal quotation marks and citations omitted). Conclusory allegations of
an agreement do not suffice. See Bush v. Butler, 521 F. Supp. 2d 63, 68—69 (D.D.C.
2007) (finding that, where “plaintiff merely concludes that there was an agreement
among the defendants to deprive him of access to the courts,” he “has failed to plead
sufficient facts from which the Court could infer the existence of a conspiracy between
the defendants”). The Court concludes that plaintiff s paltry allegations of conspiracy are
conclusory at best, and purport to involve a co—conspirator — plaintiffs former landlord —
who is no longer a party to this action. See Lyles v. Hughes, 964 F. Supp. 2d 4, 9 (D.D.C.
2013). Defendants” motion to dismiss plaintiff’s conspiracy claim will therefore be
GRANTED.
ll
III. Plaintiff’s Constitutional Claims1
A. Claims Against the USMS
Plaintiff purports to bring this action under 42 U.S.C. § 1983. See Am. Compl. at
2. Section 1983 provides in pertinent part:
[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 (emphasis added). 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 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 ofthe United States.” City ofOkla. City v. Tuttle, 471 US. 808, 829
(1985). By its terms, however, § 1983 does not apply to any federal government entity or
to federal officials acting under federal law. Settles v. US. Parole Comm ’n, 429 F.3d
1098, 1104 (DC. Cir. 2005); see Brown v. Short, 729 F. Supp. 2d 125, 132 (BBC.
‘ Plaintiff’ 5 claims under the Eighth and Fourteenth Amendments to the United States
Constitution, see Am. Compl. at 2, 8; P1.’s Opp’n at 2, 16—17, must be dismissed. The Eighth
Amendment’s protection against cruel and unusual punishment does not apply to individuals
“who have not been adjudicated guilty of any crime and are therefore not subject to punishment.
Powers-Bunce v. District of Columbia, 479 F. Supp. 2d 146, 152 (D.D.C. 2007) (internal
quotation marks and citation omitted). The Fourteenth Amendment does not apply to the federal
government. See San Francisco Arts & Athletics, Inc. v. US. Olympic Comm, 483 US. 522,
542 n.21 (1987) (recognizing that “[t]he Fourteenth Amendment applies to actions by a State,”
and where “[t]he claimed association . . . is between the USOC and the Federal Government. . . .
the Fourteenth Amendment does not apply”).
75
12
2010) (concluding that US. Marshals Service Detention Security Officer who followed
U.S. Marshal policy by conducting a partial strip search before placing plaintiff in a
holding cell “was a federal actor analogous to the US. Marsha1[] for the Superior Court[]
to whom Section 1983 does not apply”).
Plaintiff fares no better if this action were to proceed against the USMS under
Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 US. 388
(1971), which is “the federal analog to suits brought against state officials under [§]
1983,” Hartman v. Moore, 547 US. 250, 254 n.2 (2006) (citations omitted); see Carlson
v. Green, 446 US. 14, 18 (1980) (“Bivens established that the victims ofa constitutional
violation by a federal agent have a right to recover damages against the official in federal
court despite the absence of any statute conferring such a right”). Importantly, a Bivens
action will only lie against federal officials. There is no Bivens action as against the
federal government directly or a federal government agency. See iMeyer, 510 US. at 486
(“An extension of Bivens to agencies of the Federal Government is not supported by the
logic of Bivens itself”). Plaintiffs constitutional claims against the USMS must
therefore be DISMISSED.
B. Claims Against Hughes and Alford
Plaintiff’s Bivens claims against Marshals Hughes and Alford fare no better. As
stated previously, Bivens affords a plaintiff “an implied private action for damages
against federal officers alleged to have violated [her] constitutional rights.” Corr. Servs.
Corp. v. Malesko, 534 US. 61, 66 (2001). Because “[s]overeign immunity . . . bar[s]
suits for money damages against officials in their oflicial capacity absent a specific
13
waiver by the government,” Clark v. Library ofCongress, 750 F.2d 89, 103 (DC. Cir.
1984) (emphasis in original), plaintiff‘s constitutional claims against Hughes and Alford
in their official capacities necessarily fail. Her claims against Hughes and Alford in their
individual capacities also fail because the Amended Complaint does not adequately
allege a constitutional claim against them.
“A Rule 12(b)(6) motion tests the legal sufficiency ofa complaint[.]” Browning v.
Clinton, 292 F.3d 235, 242 (DC. Cir. 2002). Plaintiff’s Amended Complaint can survive
defendants’ motion only if it “contain[s] sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face,” that is, when it “pleads factual content
that allows the court to draw the reasonable inference that the defendant[s are] liable for
the misconduct alleged.” Iqbal, 556 US. at 678 (citing Twombly, 550 US. at 570).
“Critical to a Bivens claim is an allegation ‘that the defendant federal official[s
were] personally involved in the illegal conduct.”’ Harris v. Holder, 885 F. Supp. 2d 390,
397 (D.D.C. 2012) (quoting Simpkins v. District ofColumbia Gov ’t, 108 F.3d 366, 369
(DC. Cir. 1997)). Indeed, “[b]ecause 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. ” Iqbal, 556 US. at 676.
Plaintiff here alleges numerous constitutional violations but fails to identify which
government official committed each alleged violation. Thus, as drafted, it is impossible
to determine which defendant is responsible for having committed the purported
misconduct. Nor can the Court determine whether plaintiff purports to hold the Superior
Court Marshal liable for the alleged unconstitutional acts of his subordinate. This
14
shortcoming is fatal to plaintiff’s suit. If, for example, defendant Alford is alleged to
have committed a constitutional violation, then defendant Hughes, Alford’s superior,
cannot be held liable for that violation under a theory of vicarious liability. See Iqbal,
556 US. at 676 (noting respondent’s concession “that Government officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior”). Plaintiff contends that “it was impossible for [her] to state
specifically which Marshal committed which action because they both thwarted any
attempt to identify themselves to prevent [her] from reporting them or bringing a civil
action against them.” Pl.’s Resp. to Def’s Second Mot. to Dismiss, at 2 [Dkt. #19]; see
Pl.’s Opp’n at 9 (averring that the Marshals “refused to permit the Plaintiff to obtain their
badge numbers while they embarked on vicious eviction”). No such allegation appears in
her Amended Complaint, however. Without sufficient factual allegations to support her
claims, plaintiff simply fails to state viable Bivens claims against Hughes and Alford.2
2 Defendants argue that they are entitled to qualified immunity with respect to plaintiff’s claims.
See Defs.’ Mem. at 9. Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the challenged
conduct.” Ashcroft v. Al—Kidd, 131 S. Ct. 2074, 2080 (201 1) (citing Harlow v. Fitzgerald, 457
US. 800, 818 (1982)). Even ifthe Court were to conclude that plaintiff adequately alleges the
violation of rights protected under the Fourth and Fifth Amendments, the dearth of factual
allegations set forth in plaintiff’s Amended Complaint and the sparse record in this case make it
impossible to determine whether Hughes and Alford would be protected by qualified immunity.
15
CONCLUSION
The Court concludes that plaintiff’s Amended Complaint fails to state claims upon
which relief can be granted and, therefore, defendants’ motion to dismiss will be
GRANTED. An Order accompanies this Memorandum Opinion.
16
pushed her out of the door,” id. 1] 22. They allegedly “pushed [plaintiff] so hard that she
landed on the floor [in front] of the door of the apartment across the hallway.” Am.
Compl. 1] 22. When plaintiff attempted to “go back into [her] apartment to get her purse,
phone, and money, [they] stopped her by handcuffing her arms behind her back,” Am.
Compl. 1] 23, knocked her to the floor, forced her to lie face down on the floor, and
shackled her feet, id. 1] 24. “Plaintiff struggled while lying on the floor, . . . cried out in
pain and screamed to the witnesses” who were observing the events, and was “kicked . . .
on the right part of her forehead causing blood to flow” by one of the defendants after he
“told her to shut up and . . . she did not.” Am. Compl. 1] 25.
According to plaintiff, “[t]he Marshals carried only a few items outside and fled as
soon [as] the landlord had the locks changed,” Am. Compl. 1] 26, leaving “nearly all of
[plaintiff s] possessions including the safe which they knew contained money and
jewelry in the hands of the landlord who slammed the door shut and told the Plaintiff to
get out,” id. 1] 27. According to plaintiff, she “was so distraught that she suffered a gran
mal seizure on the spot and was rushed to the emergency room [of a hospital] by her
neighbors and was subsequently hospitalized.” Am. Compl. 1] 28. She since has been
unable to retrieve her personal belongings from her former landlord, who allegedly “has
refused to release her property or even talk to her.” Am. Compl. 1] 31.
The United States Marshals Service (“USMS”), Michael Hughes, the United
States Marshal for the District of Columbia Superior Court, and Jeremy Alford, a Deputy
U.S. Marshal, effected her eviction on April 20, 2012. Am. Compl. 1] 2; see Mem. of P.
& A. in Supp. of Defs.’ Mot. to Dismiss, (“Defs’ Mem.”), Ex. A (Certification Pursuant
3
to 28 U.S.C. § 2679 by Daniel F. Van Horn, Chief ofthe Civil Division, Office ofthe
United States Attorney for the District of Columbia) [Dkt. #15—2]. She brings this action
under 42 U.S.C. § 1983 alleging violations of rights protected under the Fourth, Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. See generally
Am. Compl. In addition, plaintiff brings a host of tort claims, including claims for
conversion, intentional infliction of emotional distress, false arrest, false imprisonment,
abuse ofprocess, negligence, civil conspiracy, assault, and battery. Am. Compl. at 8-14.
She demands compensatory and punitive damages. Am. Compl. at 15.
STANDARDS OF REVIEW
Defendants move to dismiss Plaintiff’s Complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) permits a party to assert by motion
the defense of lack of subject matter jurisdiction, and Rule 12(b)(6) permits the defendant
assert by motion a defense that plaintiff failed to state a claim upon which relief can be
granted.
1. Federal Rule of Civil Procedure 12(b)(1)
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA,
363 F.3d 442, 448 (DC. Cir. 2004) (“As a court oflimitedjurisdiction, we begin, and
end, with an examination of ourjurisdiction.”). The law presumes that “a cause lies
outside [the Court’s] limitedjurisdiction” unless a plaintiff establishes otherwise.
Kokkonen v. Guardian Life Ins. Co. 0fAm., 51 1 U.S. 375, 377 (1994). When a defendant
files a motion to dismiss a complaint for lack of subject matter jurisdiction, the plaintiff
bears the burden ofestablishing jurisdiction by a preponderance of the
evidence. See Lujan v. Defenders of Wildlife, 504 US. 555, 561 (1992). In evaluating a
motion to dismiss under Federal Rule ofCivil Procedure 12(b)(1), the Court must
"assume the truth ofall material factual allegations in the complaint and ‘construe the
complaint liberally, granting plaintiff the benefit ofall inferences that can be derived
from the facts allegcdH’" Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (DC. Cir.
2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (DC. Cir. 2005)). Nevertheless.
“"the court need not accept factual inferences drawn by plaintiffs if those inferences are
not supported by facts alleged in the complaint, nor must the Court accept plaintiffs legal
conclusions.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting
Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). In making its
determination. the Court is not limited to the allegations in the complaint and “may
consider such materials outside the pleadings as it deems appropriate to resolve the
question [of] whether it has jurisdiction to hear the case.” Scolaro v. District of
Columbia Bd. ofElections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citation
omitted).
II. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Federal Rule ofCivil Procedure 12(b)(6), a
complaint must contain sufficient factual matter, accepted as true. to state a claim to relief
that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations and citations omitted). Although a plaintiff may survive a Rule
12(b)(6) motion even Where “recovery is very remote and unlikely," the facts alleged in
5
the complaint “must be enough to raise a right to reliefabove the speculative level[.]”
BellAtl. Corp. v. Twombly, 550 US. 544, 555—56 (2007) (internal quotation marks and
citation omitted). lfthe facts as alleged, which must be taken as true, fail to establish that
a plaintiffhas stated a claim upon which relief can be granted. the Rule 12(b)(6) motion
must be granted. See. eg. Am. Chemistry Council, Inc. v. US. Dep't of Health & Human
Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).
DISCUSSION
Defendants’ arguments for dismissal of plaintiff‘s claims are premised on the
USMS’ status as a federal government entity and the remaining defendants’ status as
federal government officers or employees. See generally Defs.’ Mem. at 4-6. The
USMS is a bureau within the United States Department of Justice, see 28 U.S.C. §
561(a), and the United States Marshal for the Superior Court of the District of Columbia
is appointed by the President of the United States and confirmed by the Senate, id. §
561(c). “Like all other US. Marshals, the Superior Court Marshal ‘shall be an official of
the [USMS] and . . . serve[s] under the direction of the Director,’ [28 U.S.C. §
561(c)], who “supervise[s] and direct[s] the [USMS] in the performance ofits duties[,]’
28 U.S.C. § 561(g).” Johnson v. Gov’t oft/26 District ofColumbia, 734 F.3d 1194, 1199
(DC. Cir. 2013).
With respect to defendants Hughes and Alford. defendants represent:
District of Columbia Superior Court United States Marshal
Michael Hughes and Deputy United States Marshal Jeremy
Alford . . . were . . . acting within the scope of their
employment as employees of the United States Marshal
Service at the time of the allegations stated in the Amended
6
Complaint; that is, in March 2012 and April 1012, when
Plaintiff, Pamela Lyles, was evicted from her apartment
pursuant to a valid Writ of Restitution issued by the Superior
Court for the District of Columbia.
Defs.’ Mem., Ex. A (Certification Pursuant to 28 U.S.C. § 2679). “Upon certification . . .
that the defendant employee[s were] acting within the scope of [their] office or
employment at the time of the incident out of which the claim arose, any civil action . . .
commenced upon such claim in a United States district court shall be deemed an action
against the United States . . . and the United States shall be substituted as the party
defendant.” 28 U.S.C. § 2679(d)(1).
I. Plaintiff’s Tort Claims
Plaintiff alleges numerous tort claims in her Amended Complaint, including
claims for conversion, intentional infliction of emotional distress, negligence, abuse of
process, conspiracy, assault and battery, and false imprisonment. See generally Am.
Compl. Defendants move to dismiss plaintiff” s tort claims for lack of subject matter
jurisdiction, arguing that these claims are not cognizable because plaintiff failed to
exhaust the requisite administrative remedies. See Defs.’ Mem. at 4-6.
“It is axiomatic that the United States may not be sued without its consent and that
the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463
US. 206, 212 (1983). “Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510 US. 471, 475 (1994)
(citations omitted); see Dep’t 0fthe Army v. Blue Fox, Inc., 525 US. 255, 260 (1999)
(same). The Federal Tort Claims Act (“FTCA”) grants an express waiver of sovereign
immunity, allowing the United States to be held liable “in the same manner and to the
same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, for
certain — but not all — tort claims, see, e.g., Richards v. United States, 369 US. l, 6
(1962) (“The Tort Claims Act was designed primarily to remove the sovereign immunity
of the United States from suits in tort and, with certain specific exceptions, to render the
Government liable in tort as a private individual would be under like circumstances”).
The FTCA has limits and does not waive immunity for constitutional torts that may have
been committed by federal government officers or employees. See Meyer, 510 US. at
477-78 (1994) (“[T]he United States simply has not rendered itselfliable . . . for
constitutional tort claims”). Although plaintiff argues that it is improper to construe her
tort claims as arising under the F TCA, because her “Complaint is based upon the denial
of [her] Constitutional rights, 42 U.S.C.A. [§] 1983 and several torts” over which this
Court has subject matterjurisdiction, plaintiff is mistaken. Pl.’s Opp’n at 12. Because
the United States has not waived sovereign immunity for the brand of constitutional torts
plaintiff alleges in her complaint, the FTCA is the sole avenue by which she may seek
money damages from “the United States . . . for injury or loss ofproperty or personal
injury . . . caused by the negligent or wrongful act or omission of any employee ofthe
Government while acting within the scope of his office or employment.” See 28 U.S.C. §
l346(b)(1).
Even liberally construed under the F TCA, plaintiff‘s claims fail for the separate
reason that she did not exhaust her administrative remedies before bringing her claims in
federal court. In order to initiate an action against the United States for money damages,
8
including a claim under the FTCA, a plaintiff must first “present[] the claim to the
appropriate Federal agency and [her] claim shall have been finally denied by the agency
in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). A plaintiff’s
“[f]ailure to first present the claim to the proper agency constitutes a failure to exhaust
administrative remedies and may result in dismissal of the claim for lack of subject
matterjurisdiction.” Beard v. Seals, 14 Civ. 1035 (RCL), 2014 WL 6783707, at *1
(D.D.C. Dec. 2, 2014); see Abdurralzman v. Engstrom, 168 F. App’x 445, 445 (DC. Cir.
2005) (per curiam) (affirming the district court’s dismissal of an
unexhausted F TCA claim “for lack of subject matter jurisdiction”).
Plaintiff does not allege that she presented an administrative claim to the
appropriate agency, see generally Am. Compl., and the USMS has no record of having
received a claim from her, see Defs.’ Mem., Auerbach Dec]. 1111 4-5 [Dkt. #15-2]. Where,
as here, plaintiff did not exhaust her administrative remedies before bringing this action,
the FTCA bars her tort claims. See 28 U.S.C. § 2675(a); McNeil v. United States, 508
US. 106, 113 (1993) (affirming dismissal of plaintiff‘s FTCA claim for lack of subject
matter jurisdiction because “[t]he FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies”). Defendants’ motion to
dismiss plaintiff‘s tort claims must therefore be GRANTED.
II. Plaintiff’s Civil Conspiracy Claim
Defendants next argue that the Amended Complaint fails to allege a civil
conspiracy claim. See Defs.’ Mem. at 6. Plaintiff responds by referring to “Paragraph 8
of the [Amended] Complaint,” where she alleges that, on or about March 26, 2012,
9
Defendant U.S. Marshal Hughes and the landlord “jointly attempted to illegally evict the
[p]laintiff even though they both knew or should have known that there was no writ of
Possession or eviction order in effect at that time.” See Pl.’s Opp’n at 1 1. In support of
this contention, plaintiff also refers to a “docket,” which presumably is a reference to the
docket of the matter before the Superior Court’s Landlord and Tenant Branch, as
evidence that “there was no eviction order” in place at the time of her eviction. See Pl.’s
Opp’n at l 1. There appears a docket entry dated March 26, 2012 reflecting the
cancellation ofa Writ of Restitution on March 19, 2012. See P1.’s Mot. Ex. (Docket
Sheet) at 4. To plaintiff, this cancellation is proof not only that there was no eviction
order in effect on March 19, 2012, but also that defendant Hughes and her former
landlord “conspired to illegally evict the Plaintiff but were prevented from doing so only
because Marshal Hughes could not find the address.” See Pl.’s Opp’n at 11.
Plaintiff 5 references to the two unsuccessful eviction attempts in March 2012 are
puzzling. The events giving rise to this action occurred in the course of plaintiff 3 actual
eviction on April 20, 2012, about “7 days after the landlord received a new eviction order
of possession on April 13, 2012.” See Am. Compl. W 2, 9. Whether there existed a
conspiracy to evict plaintiff in March 2012, and whether an “attempt to evict the Plaintiff
[at that time] would have been totally illegal and without authorization,” Am. Compl. at
13, is irrelevant.
In any event, the allegations in the Amended Complaint fail to adequately allege
the existence of a conspiracy. “A civil conspiracy is a combination of two or more
persons acting in concert to commit an unlawful act, or to commit a lawful act by
10