Lewis v. Government of the District of Columbia ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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RADCLIFFE BANCROFT LEWIS, )
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Plaintiff, )
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v. ) Civil Action No. 08-1314 (RJL)
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GOVERNMENT OF THE )
DISTRICT OF COLUMBIA et ai., )
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Defendants. )
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MEMORANDUM OPINION
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August ~, 2009
In this civil action, plaintiff, proceeding pro se and in forma pauperis, alleges that on
May 24,2005, an officer of the Metropolitan Police Department ("MPD") forced him to leave
the Greyhound Bus Station apparently without cause. He sues the District of Columbia, an MPD
officer identified only as Anderson, Emmanuel Oghogho of the District's Office of Risk
Management, and Greyhound Bus Company, which has been dismissed from the case. See Order
of November 21,2008 (granting Greyhound Lines, Inc.'s motion to dismiss as conceded). The
District of Columbia moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, asserting that the case is barred by the statute of limitations and that plaintiff has
failed to state a claim against the municipality.
Upon consideration of the parties' submissions and the entire record the Court grants the
District's motion to dismiss for failure to state a federal claim. I In addition, the Court dismisses
I Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental
jurisdiction over any remaining claims against the District of Columbia.
sua sponte the complaint against Emmanuel Oghogho whom plaintiff sues for actions taken in
his official capacity as an "agent" of the District via its Office of Risk Management. CompI. at 3,
19; see Kentucky v. Graham, 473 U.S. 159, 166 (1985) (an official-capacity lawsuit "is, in all
respects other than name, to be treated as a suit against the entity,,).2
I. BACKGROUND
Plaintiff alleges that he was seated in the dining area of the Greyhound bus station
"supping tea ... preparing to eat a burrito ... [and] performing a sketching exercise on a sheet of
paper," CompI. at 5, when a black MPD officer (Anderson) told him that without a bus ticket he
had fifteen minutes to leave. Id. "[L]ess than three minutes thereafter," the officer told plaintiff
that he had ten minutes to leave. !d. Plaintiff asked the cashier for a refund "explaining that I am
not able to eat the burrito fast enough to satisfy their police officer who is ordering me to leave."
[d. The officer then ordered plaintiff to leave immediately. Id. Plaintiff "called 911 and
requested a supervisor," but was unable "to effectively report ... the [officer's] name and badge
number" because the badge was partially concealed. Id. at 6. A white officer responded to the
first officer's call for backup. Id. When plaintiff approached the cashier again, the first officer
"instruct[ed] the service workers not to provide a refund [and] picked up the burrito ... and
placed it in a white plastic bag." !d. When plaintiff left the building, the officer told plaintiff
2 As to the remaining defendant, Officer Anderson, the docket shows a return of service
indicating that the United States Marshals Service personally served "Metropolitan Police Officer
Anderson-First District-CIO Custodian or Records" via service upon "file clerk" Jeanne
Schofield. Dkt. No.4. Anderson has not appeared in the case, but the proof of service based on
information supplied by plaintiff in the complaint is wholly deficient. Because Officer Anderson
is the only defendant directly implicated in the alleged wrongdoing, the Court will allow time for
plaintiff to provide correct information about this defendant so that--in the unlikely event that
plaintiff is successful--the court officers can fulfill their duty under 28 U.S.c. § 1915(d) to serve
Anderson with process.
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that he did not want to '" see [him] in my building again. ,,, Id. Plaintiff called 911 again and was
told that there was no record of his previous call. When plaintiff relayed the incident to another
officer who had driven to the scene and requested assistance with "preserving the evidence of the
occurrence," he was denied assistance but told that he could file a complaint with the Second
District. Id. at 7. "On the night" of the incident, plaintiff attempted to file a report with the
Second District but "the front desk attendant was unable to accept the complaint because we
were unable to decipher the identity of the alleged police officer ... who accosted me." Id. at 9.
"[A]bout a month later [while passing] the Greyhound bus stop," plaintiff saw the officer and
"dared to inquire as to his name and badge number." !d. To plaintiffs "best recollection [he]
heard it stated' Anderson,' as well as the badge number." Id.
The Clerk of Court initially received plaintiffs complaint on May 27,2008, and formally
filed it on July 30, 2008, one day after the granting of plaintiffs motion to proceed informa
pauperis. Plaintiff sets forth the following claims: "Unreasonable Search and Seizure and
Wrongful Ejection"; "Retaliatory Denial of Due Process and Infringement of Privacy"; and
"Public Humiliation and Wrongful Infliction of MortifYing Shame." Id. at 1-3. He also claims
that he was discriminated against based on his race because Officer Anderson accosted him, "a
[paying] Black patron ... while [not disturbing] a sleeping and non-paying white loiterer [who]
was within ten paces of [the officer]." Id. at 12.
II. DISCUSSION
1. The Case is Not Time Barred
Reading the complaint liberally, the Court considers the complaint as brought under 42
U.S.C. § 1983 and the District's common law. The maximum time permitted for bringing such
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claims is three years from the date the action accrued. See Lewis v. Bayh, 577 F. Supp.2d 47,51
(D.D.C. 2008) ("In the District of Columbia, D.C. Code § 12-301(8) governs [§ 1983] claims and
provides a [catch-all] three-year statute of limitations."); see id at 52 ("D.C. Circuit law clearly
provides one-year or three-year statutes of limitations for § 1983 ... claims.") (citations omitted).
The District argues that plaintiffs § 1983 and common law claims are barred by the District's
three-year statute of limitations, but it erroneously relies on the filing date of July 30, 2008. The
Court is familiar with the Office of the Clerk's processing of a complaint submitted with a
motion to proceed in forma pauperis. It takes judicial notice of the administrative delay that
occurs in most instances between the Clerk's receipt of the complaint and the formal filing or
docketing of the complaint. In such circumstances, the Clerk's receipt date controls for purposes
of timeliness. See Guillen v. National Grange, 955 F. Supp. 144, 145 (D.D.C. 1997) (finding a
Title VII litigant "not responsible for the administrative delay associated with the Court's review
of petitions to proceed in forma pauperis . ... [T]he presentation of a complaint [and] a petition
to proceed in forma pauperis tolls the ninety-day period of limitations ... ") (citations omitted);
accord Okereh v. Winter, 600 F. Supp.2d 139, 141-42 (D.D.C. 2009).
In his opposition, plaintiff correctly asserts that May 24, 2008 (the limitations deadline),
was a Saturday and Monday, May 26,2008, was a holiday. See PI. 's Response to the District of
Columbia's Motion to Dismiss [Dkt. No. 24] at 5. The Clerk's receipt of the complaint on the
next business day of May 27,2008, therefore constitutes a timely filed action. See Okereh, 600
F. Supp.2d at 142 ("Because June 2 was a Saturday, Mr. Okereh had until Monday, June 4,2007,
to file his complaint.").
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2. Plaintiff Fails to State a Federal Claim Against the District of Columbia
A court may dismiss a complaint on the ground that it fails to state a claim upon which
relief can be granted if, assuming the alleged facts to be true and drawing all inferences in the
plaintiffs favor, it appears that the plaintiff can prove no facts "consistent with the allegations in
the complaint" to support the claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,563, 127
S.Ct. 1955, 1969 (2007); accord Ashcroft v. Jqbal, 129 S.Ct. 1937, 1949 (2009). "[T]he
pleadings [must] suggest a 'plausible' scenario to 'sho[w] that the pleader is entitled to relief[.]'''
Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (quoting Twombly, 127 S.Ct. at 1966).
Thus, "[ w ]hile a complaint attacked by a Rule 12(b)( 6) motion to dismiss does not need detailed
factual allegations, ... a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]" Twombly, 127 S.Ct. 1964-65 (citations omitted). And "even apro
se complainant must plead 'factual matter' that permits the court to infer 'more than the mere
possibility of misconduct. '" Atherton v. District of Columbia Office of Mayor, 567 F .3d 672,
681-82 (quoting Jqbal, 129 S.Ct. at 1950).
Section 1983 creates a cause of action against a "person" who, while acting pursuant to
"any statute, ordinance, regulation, custom, or usage, of any State ... or the District of
Columbia" deprives an individual of "any rights, privileges, or immunities secured by the
Constitution and laws." 42 U.S.c. § 1983. Plaintiff invoked the Constitution and 42 U.S.C.
§ 2000a (prohibiting discrimination in places of public accommodation). To establish a claim
under § 1983 against the District, plaintiff must allege that the individual wrongdoer-Officer
Anderson-acted pursuant to an unconstitutional policy, practice or custom promulgated or
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sanctioned by the municipality. Daskalea v. District a/Columbia, 227 F.3d 433, 441 (D.C. Cir.
2000) (internal citations omitted); Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C.
Cir. 1997); Meyer v. Reno 911 F. Supp. 11, 15 (D.D.C. 1996) (citing cases). Municipal liability
cannot be based on a theory of respondeat superior or vicarious liability. Iqbal, 129 S.Ct. at
1948-49; Graham v. Davis, 880 F.2d 1414, 1421 (D.C. Cir. 1989) (citing Monell v. Dep't. 0/
Social Services a/the City a/New York, 436 U.S. 658, 691 (1978)).
Plaintiffs allegations do not state or infer that Officer Anderson acted pursuant to District
of Columbia policy or custom but rather suggest that Officer Anderson was working off-duty for
Greyhound at the time of the incident. See CompI. at 10 ~ ("The suspect who is the subject of
this complaint apparently sought to enforce a mandate by the Greyhound Bus Company (an
alleged private company)"; id. at 17 (questioning "whether it is appropriate for off-duty police
officers to ... utilize the police powers of the state in carrying out the duties of private clients").
Plaintiff has stated no facts to support a § 1983 claim against the movant. Cf Atherton, 567 F.3d
at 691 ("The facts alleged by Atherton do not support an inference of a course the city's
'policymakers consciously chose to pursue."') (quoting Triplett, 108 F.3d at 1453). The District
of Columbia's Rule 12(b)(6) motion to dismiss therefore is granted. A separate Order
accompanies this Memorandum Opinion.
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RICHAR J. LEON
United States District Judge
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