Delaney v. District of Columbia ( 2009 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    _______________________________________
    MELVIN DELANEY, JR., et al.,            )
    )
    Plaintiffs,                 )
    )
    v.                                )               Civil Action No. 08-1651 (RMC)
    )
    DISTRICT OF COLUMBIA, et al.,           )
    )
    Defendants.                 )
    _______________________________________)
    MEMORANDUM OPINION
    Melvin Delaney, Jr. and Melodie Venee Shuler, husband and wife, bring this suit
    pro se on behalf of themselves and their child M. Delaney. The Complaint alleges numerous
    violations of federal and local law, mostly arising from Mr. Delaney’s admitted failure to pay
    child support and a resulting criminal contempt charge against him. The District of Columbia
    and its officials and employees move to dismiss for failure to state a claim and for lack of
    jurisdiction. As explained below, the motion to dismiss will be granted, except with regard to
    Count 12 of the Complaint.
    I. FACTS
    The Complaint sets forth numerous claims that are somewhat difficult to decipher
    and Plaintiffs’ responses to the Defendants’ motion to dismiss do little to clarify them.
    Plaintiffs’ claims generally arise from a District of Columbia criminal contempt action against
    Mr. Delaney due to unpaid child support and from difficulties Ms. Shuler encountered when she
    and their child, M. Delaney, attempted to visit Mr. Delaney while he was held at the D.C. Jail.
    Ms. Shuler is an attorney, and she sought to assist Mr. Delaney in dealing with his legal
    problems.
    Plaintiffs allege that Mr. Delaney was incarcerated at the Lorton and Rivers
    Correctional Centers from 2001 to June of 2003 and at the D.C. Jail from May 29, 2007 to
    September 25, 2007. Compl. ¶¶ 19-20. They allege that Mr. Delaney could have been exempted
    from liability for child support during these periods if he had been provided access to the courts
    or the assistance of adequate counsel, or if he had been able to receive visits by and assistance
    from Ms. Shuler. Id. ¶¶ 19-38.
    As a result, Plaintiffs filed a Complaint against the District of Columbia and
    certain D.C. officials and employees. The District and the following D.C. officials and
    employees move to dismiss the Complaint: Mayor Adrian Fenty; former Deputy Warden Brenda
    Ward of the D.C. Department of Corrections (“DOC”), DOC Captain Nora Talley; and former or
    current Assistant Attorneys General for the District Michael Orton, Arden Harris, and Nancy
    Johnson1 (collectively the “District Defendants”).2
    The Counts of the Complaint that purport to allege claims against the District
    Defendants assert the following causes of action:
    Count 1 – Fifth Amendment Due Process;
    Count 2 – Fraud;
    Count 4 – Fifth Amendment Due Process;
    1
    Nancy Johnson is the supervisor of Messrs. Orton and Harris.
    2
    The Complaint also names former D.C. Mayor Anthony Williams, but there is no evidence
    that the former Mayor was ever served and thus counsel for the District did not file pleadings on his
    behalf. Even so, all allegations against him will be dismissed because there are no allegations that
    he was personally involved in any of the constitutional violations alleged in the Complaint. See
    infra, section III. A. of this Opinion.
    -2-
    Count 5 – Fifth Amendment Due Process;
    Count 6 – First Amendment;
    Count 7 – Negligence;
    Count 10 – First Amendment;
    Count 11 – Fourth Amendment;
    Count 12 – Fifth Amendment Due Process;
    Count 13 – Fifth Amendment Due Process;
    Count 14 – Fifth Amendment Due Process;
    Count 15 – Fifth Amendment Due Process;
    Count 16 – Defamation, Libel and Slander;
    Count 18 – Intentional Infliction of Emotional Distress;
    Count 19 – Fifth Amendment Due Process and Sixth Amendment
    Right to Counsel; and
    Count 21 – Negligent Training and Supervision.3
    Plaintiffs seek monetary, declaratory, and injunctive relief with regard to these claims. See id. at
    p. 80. The details of the allegations are discussed below in the analysis of each legal theory.
    II. LEGAL STANDARDS
    A. Failure to State a Claim
    A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
    challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
    3
    Counts 3, 8, 9, 17, and 20 are not listed here, as these counts do not contain allegations
    against the District Defendants. The Complaint also alleges violations of the District of Columbia
    constitution. See Compl. ¶¶ 30-31. There is no such constitution.
    -3-
    a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
    statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A
    complaint must be sufficient “to give a 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
    citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
    obligation to provide the grounds of his entitlement to relief “requires more than labels and
    conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 
    Id.
    Rule 8(a) requires a “showing” and not just a blanket assertion of a right to relief. Id. at n.3.
    A court must treat the complaint’s factual allegations as true, “even if doubtful in
    fact,” id. at 1965, and must draw all reasonable inferences in the plaintiff’s favor. Macharia v.
    United States, 
    334 F.3d 61
    , 64, 67 (D.C. Cir. 2003). Even so, the facts alleged “must be enough
    to raise a right to relief above the speculative level,” Twombly, 
    550 U.S. at 555
    , and a court need
    not accept as true inferences unsupported by facts set out in the complaint or legal conclusions
    cast as factual allegations. Browning v. Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002). “[A]
    complaint needs some information about the circumstances giving rise to the claims.”
    Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 
    525 F.3d 8
    , 16 n.4 (D.C. Cir. 2008)
    (emphasis in original).
    B. Lack of Jurisdiction
    On a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal
    Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has
    subject matter jurisdiction. Evans v. B.F. Perkins Co., 
    166 F.3d 642
    , 647 (4th Cir. 1999);
    McNutt v. Gen. Motors Acceptance Corp., 
    298 U.S. 178
    , 182-83 (1936). Because subject matter
    -4-
    jurisdiction focuses on a court’s power to hear the claim, however, a court must give a plaintiff’s
    factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required
    for a Rule 12(b)(6) motion for failure to state a claim. Macharia, 
    334 F.3d at
    64 & 69; Grand
    Lodge of Fraternal Order of Police v. Ashcroft, 
    185 F. Supp. 2d 9
    , 13 (D.D.C. 2001). A court is
    not limited to the allegations contained in the complaint. Hohri v. United States, 
    782 F.2d 227
    ,
    241 (D.C. Cir. 1986), vacated on other grounds, 
    482 U.S. 64
     (1987), but may consider materials
    outside the pleadings. Herbert v. Nat’l Acad. of Scis., 
    974 F.2d 192
    , 197 (D.C. Cir. 1992).
    III. ANALYSIS
    A. Section 1983 Claims Against Mayor Fenty, Deputy Warden Ward, and
    Supervising Assistant AG Johnson (Complaint Generally and Count 21)
    Plaintiffs seek to hold liable Mayor Fenty, Deputy Warden Ward, and Supervising
    Assistant AG Johnson for the allegedly unconstitutional actions of other D.C. employees via 
    42 U.S.C. § 1983.4
     Plaintiffs also seek to hold liable Mayor Fenty, Deputy Warden Ward, and
    Supervising Assistant AG Johnson for failing to supervise and train employees, resulting in
    alleged violations of their constitutional rights, under § 1983. See Compl. ¶¶ 271-278 (Count
    21).
    4
    Section 1983 provides a cause of action against a defendant who, acting under color of state
    law, deprived a plaintiff of a constitutional right. West v. Atkins, 
    487 U.S. 42
    , 48 (1988); Parratt v.
    Taylor, 
    451 U.S. 527
     (1981), overruled in part on other grounds, Daniels v. Williams, 
    474 U.S. 327
    (1986). Plaintiffs sue the District officials in their official and individual capacities. A suit against
    an individual in his official capacity under 
    42 U.S.C. § 1983
     is not a suit against the official, but a
    suit against the official’s office, Will v. Michigan Dep’t of State Police, 
    491 U.S. 58
    , 71 (1989), and
    a plaintiff’s claims against a defendant in his official capacity are treated as claims against the
    municipality. See Kentucky v. Graham, 
    473 U.S. 159
    , 166 (1985); Atchison v. District of Columbia,
    
    73 F.3d 418
    , 424 (D.C. Cir. 1996). Thus, the Court will treat the suit against Mayor Fenty and the
    other D.C. employees in their official capacities as a suit against the District of Columbia itself, and
    will dismiss the suit against them in their official capacities.
    -5-
    The § 1983 claims against these officials fail because (1) there are no allegations
    that any of these Defendants was personally involved in any of the alleged violations of
    Plaintiffs’ constitutional rights and (2) they cannot be held liable under § 1983 for the actions of
    their subordinates on the basis of respondeat superior. Monell v. Dep’t of Social Servs., 
    436 U.S. 658
    , 694 (1978); Morgan v. District of Columbia, 
    550 F. Supp. 465
    , 468 (D.D.C. 1982),
    aff’d without op., 
    725 F.2d 125
     (D.C. Cir. 1983) (Table). A supervisor can be held liable for a
    constitutional violation only if a plaintiff can demonstrate: (1) a grave risk of harm; (2) the
    supervisor’s own actual or constructive knowledge of that risk; and (3) the supervisor’s own
    failure to take available measures to address the risk. Maldonado-Denis v. Castillo-Rodriquez,
    
    23 F.3d 576
    , 582 (1st Cir. 1994). Plaintiffs have not so alleged. Thus, Mayor Fenty, Deputy
    Warden Ward, and Supervising Assistant AG Johnson will be dismissed as defendants in this
    case. Similarly, Count 21 of the Complaint, alleging § 1983 liability for failure to train or
    supervise, will be dismissed.
    B. Section 1983 Claims Against D.C., Captain Talley, and Assistant AGs
    Orton and Harris
    1. Domestic Relations Exception to Jurisdiction
    Counts 1, 4, and 5 of the Complaint allege that Mr. Delaney’s Fifth Amendment
    right to due process5 was violated when the District and its officials allegedly: failed to follow
    applicable child support guidelines in assessing the arrearage of his child support payments,
    Compl. ¶¶ 43, 68, & 76; provided allegedly false court orders for garnishment to Mr. Delaney’s
    5
    The Due Process Clause of the Fifth Amendment applies to the District of Columbia as a
    federal enclave. Propert v. District of Columbia, 
    948 F.2d 1327
    , 1330 n.5 (D.C. Cir. 1991) (citing
    Bolling v. Sharpe, 
    347 U.S. 497
    , 499 (1954)).
    -6-
    employers, id. ¶ 44; misallocated the child support payments among his various children, id.;
    failed to conduct an investigation before pursuing child support payments from him, id. ¶¶ 45-46
    & 90; suborned perjury by Bernadette White6 in the child support enforcement proceeding, id.
    ¶ 47; inaccurately calculated his period of probation when he was transferred to the custody of
    D.C. from Maryland on the criminal contempt charge, causing him to lose wages, id. ¶ 48;
    improperly incarcerated him for missing a court date, id. ¶ 49; sent an incorrect hearing notice
    regarding the enforcement proceeding, id. ¶ 50; failed to file court documents in the correct court
    file and failed to release certain monies, id. ¶¶ 51-55; failed to post child support payments made
    by Ms. Shuler on Mr. Delaney’s behalf, id. ¶¶ 56 & 78-83,7 failed to pursue child support
    benefits for M. Delaney, id. ¶ 57-58; and refused to enter a plea bargain “based on [Mr.
    Delaney’s] marital status,” id. ¶¶ 60 & 84-100.
    As can be seen, many of Mr. Delaney’s claims essentially seek to enjoin the
    enforcement of his child support obligations and/or to have those obligations modified or
    recalculated. With regard to such claims, the Court lacks jurisdiction under the domestic
    relations exception to federal jurisdiction. The domestic relations exception divests federal
    courts of the power to issue divorce, alimony, and child custody decrees, Ankenbrandt v.
    Richards, 
    504 U.S. 689
    , 703 (1992), or to determine child support obligations, Bennett v.
    Bennett, 
    682 F.2d 1039
    , 1042 (D.C. Cir. 1982). Accordingly, the Court must dismiss for lack of
    6
    Ms. White is the mother of the children who were owed the child support. Mr. Delaney
    asserts that he was incarcerated from 2001 to June 2003, and Ms. White testified that he was not
    incarcerated from November 1998 to June 2003.
    7
    Plaintiffs also contend that these actions interfered with family relations “because of the
    strain it placed on the family by the agency [sic] failure to post the money it caused tension in the
    relationship.” Compl. ¶ 33.
    -7-
    jurisdiction all claims seeking to enjoin the enforcement of child support orders or to amend
    those child support orders.
    2. Abstention From Claims Seeking Declaratory or Injunctive Relief
    Mr. Delaney also claims that the District and its employees violated his Fifth
    Amendment right to due process in the child support enforcement proceedings and that this Court
    should remedy the violation by granting declaratory and injunctive relief. With regard to this
    claim, the Court is required to abstain from interfering with an ongoing proceeding in Superior
    Court under the Younger doctrine. See District Props. Assocs. v. District of Columbia, 
    743 F.2d 21
    , 27 (D.C. Cir. 1984) (citing Younger v. Harris, 
    401 U.S. 37
     (1971)); see also JMM Corp. v.
    District of Columbia, 
    378 F.3d 1117
     (D.C. Cir. 2004) (Younger abstention applies to District of
    Columbia proceedings). The Supreme Court held in Younger that:
    [E]xcept in extraordinary circumstances, a federal court should not
    enjoin a pending state proceeding (including an administrative
    proceeding) that is judicial in nature and involves important state
    interests.
    Younger, 
    401 U.S. at 41
    . The Younger doctrine rests both on equitable principles and on
    concerns for comity and federalism. Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc.,
    
    477 U.S. 619
    , 626-27 (1986); Worldwide Moving & Storage, Inc. v. District of Columbia, 
    445 F.3d 422
    , 425 (D.C. Cir. 2006). Younger precludes federal adjudication when three criteria are
    met: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings
    implicate important state interests; and (3) the proceedings afford an adequate opportunity to
    raise the federal claims. Bridges v. Kelly, 
    84 F.3d 470
    , 476 (D.C. Cir. 1996).
    In a case similar to this one, the Third Circuit held that a federal court should
    -8-
    abstain from interfering in an ongoing child support proceeding under Younger. See Dixon v.
    Kuhn, 
    257 Fed. Appx. 553
     (3d Cir. 2007). The court explained that a party subject to a child
    support order is a party to an open case that does not terminate until the child support order is
    finally discharged. 
    Id. at 555
    . States have an overriding interest in ordering and enforcing child
    support obligations. 
    Id.
     And a party in a child support proceeding can raise any federal
    constitutional claims he may have. 
    Id.
     Accord Agustin v. County of Alameda, 
    234 Fed. Appx. 521
    , 522 (9th Cir. 2007) (under Younger, federal district court properly dismissed suit
    challenging a state court action to collect child support); Tindall v. Wayne County Friend of
    Court, 
    269 F.3d 533
    , 538-40 (6th Cir. 2001) (district court must abstain under Younger from
    granting declaratory or injunctive relief sought by the plaintiff who claimed that the state’s
    procedures for collecting child support were unconstitutional).
    This suit meets the three criteria for Younger abstention. First, Mr. Delaney is
    subject to an ongoing child support order. See Compl. ¶ 17 (“Mr. Delaney is arrears of child
    support orders for two former children in the District of Columbia.”). Further, the District has an
    overriding interest in enforcement of child support obligations. Finally, Mr. Delaney can bring
    his due process challenge before the D.C. Superior Court as a defense in any proceeding to
    enforce his child support obligations. See JMM Corp., 
    378 F.3d at
    1121 & 1127 (a defendant in
    a District of Columbia proceeding has an opportunity to raise constitutional claims as defenses).
    3. Quasi-Judicial and Prosecutorial Immunity From Liability for Due
    Process Claims under Counts 1, 4, and 5
    Mr. Delaney also seeks monetary damages for the alleged infringement of his
    Fifth Amendment due process right. He asserts that he was subjected to “false” court orders,
    -9-
    improper calculation of his probation period, erroneous hearing notices, the court’s failure to put
    court documents in the correct file, incorrect posting of child support payments, and an
    inappropriate refusal to engage in plea bargaining.
    These claims are barred by quasi-judicial and prosecutorial immunity. Judges
    have absolute immunity from any lawsuit arising from the performance of judicial functions.
    Forrester v. White, 
    484 U.S. 219
    , 225 (1988). Such “[i]mmunity is defined by the functions it
    protects and not by the person to whom it attaches.” 
    Id. at 227
    . Immunity “applies to all acts of
    auxiliary court personnel that are basic and integral parts of the judicial function.” Sindram v.
    Suda, 
    986 F.2d 1459
    , 1461 (D.C. Cir. 1993). “Suits against clerks for damages, like those
    against judges, are generally not necessary to control unconstitutional conduct in light of the
    numerous safeguards that are built into the judicial process, especially the correctability of error
    on appeal.” 
    Id.
     (internal quotation marks and citation omitted). Thus, others who perform
    judicial functions enjoy quasi-judicial absolute immunity, including law clerks and court clerks.
    Wagshal v. Foster, 
    28 F.3d 1249
    , (D.C. Cir. 1994) (law clerks); Sindram, 
    986 F.2d at 1461
     (court
    clerks). For example, the scheduling of hearings is protected by absolute immunity. Doyle v.
    Camelot Care Ctrs., Inc., 
    305 F.3d 603
    , 622 (7th Cir. 2002).
    Further, a prosecutor who acts within the scope of his duties also has absolute
    immunity in an action for damages under § 1983, Imbler v. Pachtman, 
    424 U.S. 409
     (1976), and
    the decision regarding whether to offer a plea bargain falls well within a prosecutor’s discretion.
    Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S.787, 807 (1987); accord District of Columbia
    v. Economides, 
    968 A.2d 1032
    , 1036 (D.C. 2009).
    Mr. Delaney’s claims regarding alleged “false” court orders, improper calculation
    -10-
    of probation period, erroneous hearing notices, the failure to put court documents in the correct
    file, incorrect posting of child support payments, and refusal to plea bargain are barred by quasi-
    judicial and prosecutorial immunity.
    Accordingly, under the domestic relations exception, the Younger abstention
    doctrine, and immunity, Counts 1, 4, and 5 of the Complaint will be dismissed.8
    4. First Amendment Claim (Count 6)
    Count 6 of the Complaint alleges that the District violated Ms. Shuler’s First
    Amendment rights when “the District published an affidavit of Mr. Delaney’s former attorney,
    Larry Williams, in its Motion in Opposition to Mr. Delaney’s Motion for New Trial that Ms.
    Shuler should not have been called as a witness based on her speech.” Compl. ¶ 103. Ms. Shuler
    asserts that she criticized the D.C. Child Support Services Division, stating that the Division has
    a “history and pattern of not following the law,” id. ¶ 105, and that the District prevented her
    from testifying because of her criticism, thus denying her right to free speech. Id. ¶¶ 104-107.
    A criminal defendant has a due process right to testify on his own behalf. See,
    e.g., Cooper v. Oklahoma, 
    517 U.S. 348
    , 354 (1996). Also, a government employee who testifies
    truthfully as a witness is protected by the First Amendment and may not be fired or subjected to
    any other adverse action based on such testimony. See Worrell v. Henry, 
    219 F.3d 1197
    , 1204
    8
    Count 5 also contains a nonsensical claim by Ms. Shuler that the District violated her right
    to due process by discriminating against her on the basis of gender “when it filed an affidavit in its
    Motion in Opposition to Mr. Delaney’s Motion for a New Trial because the district has a pre-
    conceived notion that black, females encourage males they are in relationships with or married to
    not [sic] pay child support.” Compl. ¶ 101. There is no allegation regarding how the mere filing of
    an affidavit caused Ms. Shuler to suffer adverse consequences nor is it apparent how the filing could
    have violated any right to substantive or procedural due process. This allegation will be dismissed
    for failure to state a claim.
    -11-
    (10th Cir. 2000). However, these rights do not translate into a third-party’s right to testify at a
    criminal trial. If the prosecutor chose not to call Ms. Shuler, that was within the scope of his
    prosecutorial discretion in making his case. See Imbler, 
    424 U.S. 409
    . If Mr. Delaney’s lawyer
    chose not to call Ms. Shuler, that was within the exercise of his discretion in protecting his client.
    Any ruling by the Superior Court judge regarding who was permitted to testify at the trial against
    Mr. Delaney on the contempt charge is entitled to absolute judicial immunity. See Forrester, 
    484 U.S. at 225
    . Count 6 fails to state a claim and will be dismissed.
    5. First Amendment Right to Access the Court (Count 10)
    In the first portion of Count 10 of the Complaint, Mr. Delaney alleges that his
    right to access the court was violated when: (1) he was incarcerated in 2007-08 and the DOC
    refused to assist him in filing motions for modification of child support; (2) DOC refused to give
    him stamps, paper, and pens to write motions for modification of child support; and (3) he was
    incarcerated in 2001-03 and an unnamed person told him there was nothing he could do to
    modify the support orders. Compl. ¶¶ 141-43 (part of Count 10).9 A claim for denial of access
    may be brought where (1) systemic official action frustrates a plaintiff in preparing and filing
    suits, such as denial of access to a law library or (2) official action precludes a claim resulting in
    the loss or inadequate settlement of a meritorious case or the loss of the opportunity to bring suit.
    Christopher v. Harbury, 
    536 U.S. 403
    , 412-14 (2002). Mr. Delaney does not state a claim for
    denial of access under either of these scenaria. Mr. Delaney did not seek to become a plaintiff in
    a suit; he was subject to a child support order and he was a defendant in an enforcement
    proceeding. Thus, Mr. Delaney’s claim does not fall under the first category. Second, the child
    9
    The Complaint does not state which defendant(s) is/are allegedly liable on this claim.
    -12-
    support order is ongoing and Mr. Delaney’s failure to file a motion to modify the order has not
    been rendered moot nor has Mr. Delaney somehow lost the right to seek modification of the child
    support order. Accordingly, this portion of Count 10 will be dismissed.
    6. First Amendment Retaliation (Count 10)
    In the second portion of Count 10 of the Complaint, Ms. Shuler alleges that
    Captain Talley refused to allow her to visit Mr. Delaney or her other clients in the D.C. Jail
    because she criticized the inconsistent search of attorneys at the Jail. Compl. ¶¶ 144-48 (part of
    Count 10). She alleges that this violated her rights under the First Amendment.
    The government may not punish a person or deprive him of a benefit on the basis
    of his “constitutionally protected speech.” Perry v. Sindermann, 
    408 U.S. 593
    , 597 (1972). Ms.
    Shuler has not alleged that she was punished. Instead, she asserts that she was deprived of her
    “right” to visit her husband while he was incarcerated in the D.C. Jail. But there is no “right” to
    visit someone who is incarcerated. “Inmates have no right to unfettered visitation.” Peterson v.
    Shanks, 
    149 F.3d 1140
    , 1145 (10th Cir. 1998) (citing Kentucky Dep’t of Corr. v. Thompson, 
    490 U.S. 454
    , 460 (1989)). And prison officials necessarily have broad discretion in controlling
    visitor access. Id.; Ramons v. Lamm, 
    639 F.2d 559
    , 580 (10th Cir. 1980).
    Because the running of a penal institution is both complex and
    difficult, prison administrators are to be “accorded wide-ranging
    deference” in adopting and executing policies and practices which,
    in their judgment, are necessary to preserve internal order and
    discipline and to maintain institutional security.
    Ramons, 639 F.2d at 580. Ms. Shuler has failed to state a claim for First Amendment retaliation
    -13-
    and Count 10 will be dismissed in its entirety.10
    7. Fourth Amendment Unreasonable Seizure (Count 11)
    Ms. Shuler alleges in Count 11 of the Complaint that on July 26, 2007, she was
    ready to exit the visiting area at the D.C. Jail when an “unknown Correctional Officer” required
    her to wait to speak to Captain Talley before leaving. Compl. ¶¶ 149-53. She contends that
    because the officers required her to wait, she was unreasonably seized in violation of the Fourth
    Amendment. Id.
    It is highly questionable that a mere request to wait, without more, alleges a
    constitutional violation of any sort. Even if it did, the claim fails because Ms. Shuler does not
    allege that an official custom or policy caused the constitutional violation. In order to state a
    claim against a municipality under § 1983, a plaintiff must show that the municipality, through
    an official custom, practice, or policy, caused the alleged constitutional violation. Monell, 
    436 U.S. at 690-95
     (1978); Triplett v. District of Columbia, 
    108 F.3d 1450
    , 1453 (D.C. Cir. 1997)
    (plaintiffs must prove that the constitutional tort was an “action pursuant to official municipal
    policy”). Further, an allegation of a single incident does not evidence such a policy. See
    Pembaur v. City of Cincinnati, 
    475 U.S. 469
    , 478 n.6 (1986) (municipal liability cannot be
    imposed for a single incident of unconstitutional conduct). The Complaint makes no allegation
    of any official custom, practice, or policy that caused the alleged constitutional violation and it
    10
    Neither could Ms. Shuler state a Sixth Amendment claim relating to the alleged barring
    of her visits to the D.C. Jail. The Sixth Amendment protects the right to counsel, a right that belongs
    to the client. It does not protect an attorney’s right to serve as counsel. See In re Grand Jury
    Subpoena, 
    62 F.3d 1144
    , 145-46 (9th Cir. 1995) (“Appellants [lawyers] have not identified any right
    of their own that has been affected . . . . Instead, by their own account, they seek to protect their
    client’s right to counsel of his choice.”)
    -14-
    only alleges a single incident. Thus, this claim must be dismissed as against the District under
    Monell. Inasmuch as Count 11 does not assert a claim against any named individual, it will be
    dismissed.
    8. Fifth Amendment Due Process (Count 12)
    Count 12 alleges that the District Defendants are liable because Captain Talley
    refused to allow Ms. Shuler to visit clients in the D.C. Jail on June 4, 2007 and July 27, 2007
    based on Ms. Shuler’s gender (female) and race (African-American). See Compl. ¶¶ 155 & 160.
    Count 12 asserts that this amounted to discrimination in violation of the equal protection
    component of the Due Process Clause of the Fifth Amendment.11 Id. ¶¶ 154-60. The Complaint
    alleges:
    157. Discrimination based on race when Ms. Shuler was treated
    different that [sic] other persons solely based on race, because the
    DOC do [sic] not monitor persons of other races, selection of
    monitoring based on race, did not check the verification of cases to
    determine if attorney’s [sic] were attorney’s [sic] on record before
    July of 2007, do not inquire about documents or items shown to
    inmates, do not follow, harass, insult, defame character, state will
    call bar association or counsel to have something done to the
    persons based solely on their race.
    ...
    159. If the Plaintiff was of another sex or race these incidents from
    June 2007 to September of 2007, would not have occurred. [The
    District Defendants] had and have a policy, practice and custom of
    discriminating against young, black and/or African-American
    males [sic] by:
    a. targeting, young, black female attorneys by constant
    11
    The Due Process Clause of the 5th Amendment applies to the District of Columbia, and
    it imposes the same equal protection requirements as the Fourteenth Amendment imposes on the
    states. Bolling v. Sharpe, 
    347 U.S. 497
    , 499 (1954).
    -15-
    surveillance [sic] the communication between the client and the
    attorney, questioning the purpose [sic] of the attorney visit and
    reviewing the paper work of the attorney during the visitation
    without taking the same action of other attorneys attorney [sic] and
    failing to have a penological interest or any other legally justified
    basis but only have knowledge that the attorney is [sic] females are
    black and/or African-American, young,
    b. continuously refusing to get young, black females property
    locked in the locker but having not [sic] difficulty in getting the
    property of older persons of other races, ethnicities and sexes
    property without a problem.
    ...
    e. denying or interfering with young, black females rights to enjoy
    privileges other citizens of different races, cultural ethnicities, and
    male citizens enjoy without any legally penological or sufficient
    basis; those privileges includes [sic] being able consult with their
    clients at the D.C. Jail without having Correctional Officers
    interfere with or deny young, black females the same privileges
    other citizens are not denied or interfered with.
    160. As a result, . . . Ms. Shuler suffers from reoccurring
    headaches, loss of interest in visiting her clients incarcerated at the
    D.C. Jail which is a necessary consultation of her clients [sic],
    unusual irritability and a diminished ability to think or concentrate,
    inconvenience, annoyance, humiliation, embarrassment,
    nervousness, and injury to her reputation.
    Compl. ¶¶ 157-60. Count 12 alleges that Captain Talley acted pursuant to a custom or policy of
    the District of Columbia and thus that both the District and Captain Talley are liable. See id. ¶¶
    159.
    The District Defendants contend that Count 12 sets forth conclusory allegations
    that fail to state a claim. See Twombly, 
    550 U.S. at 555
    ; see also Fame Jeans, 
    525 F.3d at
    16 n.4
    (“[A] complaint needs some information about the circumstances giving rise to the claims.”);
    Crawford-El v. Britton, 
    523 U.S. 574
    , 598 (1998) (a court may require a plaintiff to put forward
    -16-
    specific, nonconclusory factual allegations that establish improper motive).
    While the facts alleged in the Complaint are scanty, Count 12 sufficiently states a
    claim for relief under the equal protection component of the Fifth Amendment. Whether such a
    claim can survive summary judgment has yet to be determined. Accordingly, the District
    Defendants’ motion to dismiss Count 12 will be denied.
    9. Fifth Amendment Due Process (Count 13)
    In Count 13, Ms. Shuler contends that the denial of access to Mr. Delaney and
    other clients deprived her of her “right to pursue employment.” Id. ¶ 162. “Process is not an end
    in itself. Its constitutional purpose is to protect a substantive interest to which the individual has
    a legitimate claim of entitlement.” Olim v. Wakinekona, 
    461 U.S. 238
    , 250 (1983). It is well
    settled that there is no constitutionally protected right to employment absent a property interest
    — and a property interest arises only when a plaintiff has a legitimate claim of entitlement to a
    job rather than a unilateral expectation or desire for it. Bd. of Regents v. Roth, 
    408 U.S. 564
    , 577
    (1972). Ms. Shuler does not assert a legitimate claim of entitlement to represent any particular
    client or to hold any particular job; she has not stated a due process claim for deprivation of a
    property interest. Count 13 will be dismissed.
    10. Fifth Amendment Due Process (Count 14)
    In Count 14, Mr. Delaney contends that his due process right was violated when
    he was incarcerated in the D.C. Jail and correctional officers refused to let his infant son, M.
    Delaney, visit him from July of 2007 to September 25, 2007. See Compl. ¶¶ 164-65, 196, & 198.
    He claims that this was done in retaliation for starting an organization in the Jail to collect
    information about the maltreatment of inmates. Id. ¶ 165. Mr. Delaney alleges that “when the
    -17-
    infant child visited with Mr. Delaney the infant child [sic] emotional problems stopped but
    continued after the D.C. Jail had an [sic] lock-down of the entire jail and not only was the child
    unable to visit his father for weeks before the lock down but now the infant child could not even
    talk with his father.” Id. ¶ 197. Jail inmates have no right to unfettered visitation. Kentucky
    Dep’t of Corr., 
    490 U.S. at 460
    . And, as noted above, prison officials have broad discretion in
    controlling visitor access. Peterson, 
    149 F.3d at 1145
    ; Ramons, 639 F.2d at 580. Because Mr.
    Delaney had no protected “right” to receive visitors while he was incarcerated, he also had no
    right to due process when such visitation was curtailed. See Olim, 
    461 U.S. at 250
     (due process
    protects substantive interests to which the individual has a legitimate claim of entitlement). The
    Court will dismiss Count 14.
    11. Fifth Amendment Due Process (Count 15)
    M. Delaney claims that his Fifth Amendment due process right was violated when
    the District refused to allow him to visit his father when Mr. Delaney was in the D.C. Jail.
    Compl. ¶¶ 172-74 (Count 15). As explained above, prison officials have broad discretion in
    controlling visitor access. Peterson, 
    149 F.3d at 1145
    ; Ramons, 639 F.2d at 580. The infant
    child, M. Delaney, had no “right” to visit inmates in the Jail, even his father. Because M.
    Delaney fails to allege the violation of any right, the Fifth Amendment due process claim set
    forth in Count 15 will be dismissed
    12. Sixth Amendment Right to Counsel and Fifth Amendment Due Process
    (Count 19)
    Plaintiffs also allege that the District has a poorly funded system for appointing
    attorneys to indigent defendants in criminal cases. Plaintiffs complain generally that appointed
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    counsel have overwhelming case loads, causing them to fail to meet often enough or long enough
    with their clients, to fail to investigate their cases adequately, and to fail to prepare properly for
    court appearances. Compl. ¶¶ 202-24. Both Ms. Shuler and Mr. Delaney contend that counsel
    appointed to them in criminal cases were inadequate.12 Ms. Shuler contends that her attorney,
    Martha Dickey, moved to withdraw based on false allegations that Ms. Shuler was harassing her.
    Id. ¶ 208. Mr. Delaney alleges that his attorney, Larry Williams, failed to investigate the case
    properly, failed to pursue a plea bargain, and failed to prepare for trial properly. Id. ¶¶ 213-20.
    Mr. Delaney also contends that he was appointed new counsel post-trial, Stuart Johnson, and that
    Mr. Johnson also failed to investigate or prepare. Id. ¶¶ 221-22. Plaintiffs allege that D.C.
    violated their Sixth and Fifth Amendment rights by appointing inadequate counsel.
    With regard to Plaintiffs’ general complaints, Plaintiffs lack standing to make
    these claims on behalf of all indigent defendants in the District. “When the asserted harm is a
    ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens,
    that harm alone normally does not warrant exercise of jurisdiction.” Warth v. Seldin, 
    422 U.S. 490
    , 499 (1975).
    With regard to Plaintiffs’ complaints about the specific counsel appointed to
    them, these allegations do not support a § 1983 claim. A court-appointed attorney does not act
    under color of state law when performing a lawyer’s traditional function as counsel to a
    12
    As explained previously, Mr. Delaney was charged with criminal contempt due to his
    failure to pay child support. Ms. Shuler was arrested on April 16, 2005 and charged with simple
    assault. Compl. ¶ 207
    -19-
    defendant in a criminal proceeding. Polk County v. Dodson, 
    454 U.S. 312
    , 325 (1981);13 see
    West, 
    487 U.S. at 48
     (to prove a claim under § 1983, a plaintiff must plead and prove that the
    defendants, acting under color of state law, deprived the plaintiff of a constitutional right). Count
    19 also fails to state a claim and will be dismissed.
    C. Supplemental Jurisdiction Over Local Law Claims (Counts 2, 3, 7, 16, 17,
    18, & 20)
    To determine when jurisdiction over a local law claim is appropriate, a court
    must determine whether the local law claims are part of the same controversy as the federal law
    claims, i.e., whether they “derive from a common nucleus of operative fact.” United Mine
    Workers v. Gibbs, 
    383 U.S. 715
    , 725 (1966); accord Decatur Liquors, Inc. v. District of
    Columbia, 
    478 F.3d 360
    , 362 (D.C. Cir. 2007). If the local law claims are part of the same
    controversy, the court then should decide whether it will exercise its discretion to assert
    jurisdiction over the local law claims, considering judicial economy, convenience, and fairness to
    the litigants, Gibbs, 
    383 U.S. at 725-26
    , as well as comity between federal and state courts.
    Carnegie-Mellon Univ. v. Cohill, 
    484 U.S. 343
    , 350 n.7 (1988); see also Stevenson v. Severs, 
    158 F.3d 1332
    , 1334 (D.C. Cir. 1998). Congress essentially codified Gibbs in 
    28 U.S.C. § 1367
    .
    Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 
    48 F.3d 1260
    , 1266 (D.C. Cir. 1995).
    Section 1367(a) provides that “the district courts shall have supplemental jurisdiction over all
    other claims that are so related to claims in the action within such original jurisdiction that they
    form part of the same case or controversy.” Section 1367(c)(3) provides that a district court may
    13
    A plaintiff may sue an individual attorney for malpractice or may assert ineffective
    assistance of counsel as the basis for a petition for habeas corpus. Polk County, 
    454 U.S. at
    325
    n.18.
    -20-
    decline to exercise supplemental jurisdiction over a local law claim if the federal court has
    dismissed all claims over which it had original jurisdiction. 
    28 U.S.C. § 1367
    (c)(3).
    Having dismissed every federal law claim other than Count 12 (Ms. Shuler’s
    claim for violation of the equal protection component of the Fifth Amendment due to the alleged
    denial of visitation to the D.C. Jail based on her race and gender), it is appropriate to decline
    supplemental jurisdiction over all the local law claims in the Complaint. The equal protection
    claim shares no common nucleus of operative fact with the local law claims. See Gibbs, 
    383 U.S. at 725
    ; 
    28 U.S.C. § 1367
    (a). The Court will decline supplemental jurisdiction and dismiss
    without prejudice all of local law claims set forth in the Complaint: Counts 2 (fraud), 3 (fraud
    related to paternity), 7 (negligence), 16 (defamation, libel, and slander), 17 (defamation), 18
    (intentional infliction of emotional distress), and 20 (legal malpractice).
    D. Remaining Defendants
    Although the motion to dismiss was filed only on behalf of the District
    Defendants, this Memorandum Opinion necessitates dismissal of this action against all
    Defendants other than the District and Captain Talley, who are alleged to be liable in Count 12.
    The Complaint alleges claims against Bernadette White14 and Larry Williams.15 See Compl. ¶¶
    70- 74 (Count 3, fraud related to paternity against White), ¶¶ 180-83 (Count 17, defamation
    against White), ¶¶ 212-20 (Count 19, Fifth and Sixth Amendments against Williams), & ¶¶ 225-
    47 (Count 20, legal malpractice against Williams). Further, the Complaint names as defendants
    14
    Ms. White is the mother of child(ren) for which Mr. Delaney failed to pay child support.
    15
    Mr. Williams is an attorney who was appointed to represent Mr. Delaney in Superior Court
    on the criminal contempt charge.
    -21-
    Robert Smith and Walter Sellers, who Plaintiffs allege were DOC employees. DOC records
    show no Robert Smith or Walter Sellers were ever employed there. The Complaint also purports
    to bring suit against “other unknown Correctional Officers” and “other unknown D.C.
    employees.” See Compl. ¶¶ 10 & 11. Ms. White, Mr. Williams, Mr. Smith, Mr. Sellers, and the
    unknown defendants are all dismissed from this case without prejudice.16
    IV. CONCLUSION
    For the reasons set forth above, the District Defendants’ motion to dismiss [Dkt.
    # 48] will be granted in part and denied in part. All federal law claims other than Count 12 will
    be dismissed. All local law claims will be dismissed without prejudice. The only remaining
    claim is Count 12, Ms. Shuler’s claim for violation of the equal protection component of the
    Fifth Amendment due to the alleged denial of visitation to the D.C. Jail based on her race and
    gender. All defendants other than the District of Columbia and Captain Nora Talley, in her
    personal capacity, are dismissed. Also, Plaintiffs Melvin Delaney and M. Delaney are dismissed
    as parties to his case. A memorializing Order accompanies this Memorandum Opinion.
    Date: October 6, 2009                            _____________/s/__________________
    ROSEMARY M. COLLYER
    United States District Judge
    16
    The Court previously dismissed defendants Ferris Bond, William Morrison, and Stuart
    Johnson and those portions of the Complaint relating to them. See Order filed May 1, 2009 [Dkt.
    # 41] (dismissing ¶¶ 248-70 of Count 20 relating to malpractice claims). The Court also dismissed
    Shoppers Food Warehouse Corporation and United Food and Commercial Workers Union Local
    400. See Mem. Op. & Order filed May 4, 2009 [Dkt. ## 42 & 44] (dismissing ¶¶ 117-20 of Count
    7 and ¶¶ 121-39 and Counts 8 and 9 in their entirety).
    -22-