Gresham v. District of Columbia ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAPTAIN MELVIN GRESHAM, :
:
Plaintiff, :
:
v. : Civil Action No. 09-0029 (JR)
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM
Captain Melvin Gresham sues the District of Columbia
alleging violations of the District’s whistleblower act, D.C.
Code § 1-616.11, et. seq., and his First Amendment rights, and
for intentional infliction of emotional distress. The District
has moved to dismiss. Plaintiff’s opposition presented matters
outside the complaint, so, on July 29, 2009, I notified the
parties that I was treating the District’s motion as to the First
Amendment claim -- the only claim over which I have original
jurisdiction -– as one for summary judgment and ordered them to
“present all the material that is pertinent to the motion.” Fed.
R. Civ. P. 12. Dkt. # 21.
Review of those supplemental materials reveals that
plaintiff has failed to show that his injuries resulted from an
unconstitutional policy or practice for which the District can be
held liable. The District’s motion will therefore be granted as
to the First Amended claim, and, because I decline to exercise
supplemental jurisdiction over the remaining claims,1 the case
will be dismissed.
Background
Plaintiff claims that he was retaliated against for his
protected speech in violation of his First Amendment rights. The
speech he claims was protected involves three statements or
groups of statements. The first was in October 2007, when,
plaintiff asserts, he believes that District lawyers tried to
influence him to give false testimony in an employment suit
brought against the District by another police officer. Gresham
reported this incident to his own lawyer, who then filed a motion
in that case for sanctions against those attorneys. Gresham’s
affidavit, attached to that motion, is the allegedly protected
speech. Pl. Opp. MSJ at 1 (citing ex. 2).
The second instance, around April 17, 2008, was
Gresham’s letter to the Department of Justice complaining that,
because he “refused to participate in” the sabotage of another
officer’s career, he became “the target of a long pattern of
retaliation and harassment from” a member of the MPD. Pl. Opp.
MSJ ex. 3. The letter describes plaintiff’s repeated, fruitless
complaints within MPD about this conduct, all of which were
1
I will not address the assertion in plaintiff’s memoranda of
Fourth and Sixth Amendment violations that are nowhere mentioned
in the complaint.
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allegedly ignored in violation of MPD procedure. Pl. Opp. MSJ
ex. 3.
The third instance was letters plaintiff sent on
August 9, 2008, to the Mayor of the District of Columbia, to the
FBI, to then-Attorney General Mukasey, to former interim U.S.
Attorney for the District of Columbia Jeffery Taylor, and to the
U.S. Department of Justice Civil Rights Division, all complaining
about a search conducted by the MPD on a rental property he
owned, the reporting of that search by a media outlet plaintiff
asserts was tipped off by an MPD officer, and the filing by MPD
officers of supposedly fraudulent reports about the search.
Analysis
Summary judgment may be granted when there is “no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). All
reasonable inferences are drawn in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[I]n considering whether a plaintiff has stated a
claim for municipal liability, the district court
must conduct a two-step inquiry. First, the court
must determine whether the complaint states a claim
for a predicate constitutional violation. Second,
if so, then the court must determine whether the
complaint states a claim that a custom or policy of
the municipality caused the violation.
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. 2003)
(internal citations omitted).
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“The threshold question for a public employee's First
Amendment claim is whether the employee spoke as a citizen on a
matter of public concern . . . If so, his speech is protected
unless the government can justify treating its employees
differently from other citizens, . . . But if the employee spoke
‘pursuant to’ his official duties, he cannot claim constitutional
protection.” Winder v. Erste, 566 F.3d 209, 214 (D.C. Cir.
2009). A public employee speaks without First Amendment
protection “when he reports conduct” that he is obligated to
report as part of his “job responsibilities, even if the report
is made outside his chain of command.” Winder, 566 F.3d at 214-
15 (citing, Thompson v. District of Columbia, 530 F.3d 914, 917-
18 (D.C. Cir. 2008); Wilburn v. Robinson, 480 F.3d 1140, 1151
(D.C. Cir. 2007); cf. Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir.
1994)).
The speech for which plaintiff asserts constitutional
protection are his complaints about conduct that he was obligated
to report.
All officers (including supervisors and managers
who learn of evidence of possible misconduct
through their review of an officer’s work) shall
promptly notify OPR of any conduct by other
officers that reasonably appears to
constitute . . . 3. An unlawful search of
seizure . . . 7. An intentional provision of false
information in an MPD or OCCR investigation or in
any official report, log, or electronic transmittal
of information . . . Failure to voluntarily report
[this conduct] shall be an offense subject to
discipline if sustained.
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MPD General Order, PER 120.23 IV(b). Officers must “immediately
notify an official when any member . . . has knowledge of any
serious or criminal misconduct by another member.” MPD General
Order, PER 120.23 V(B)(c). “Serious misconduct” is defined in
part as “any act of retaliation or retribution against an officer
or person.” MPD General Order, PER 120.23 III(3)(h).
Defendant of course was also obligated to report the
supposed attempt to influence his testimony. See, Riley v. U.S.,
647 A.2d 1165, 1171-1172 (D.C. 1994) (attempt to suborn perjury
is a crime in the District of Columbia) (citing, D.C. Code
§ 22-103 (1989) (attempt) and D.C. Code § 22-2512 (1989)
(subornation of perjury)); see, also, D.C. Code § 22-722 (1989)
(obstruction of justice). Nor has plaintiff provided any
evidence that Chief Lanier -- the only individual named in
plaintiff’s papers whose actions could incur liability for the
District under § 1983 -- ever learned of his affidavit, let alone
that she or anyone at her command took retribution against
plaintiff for making it or that she was aware of others doing so.
* * *
A district court “may decline to exercise supplemental
jurisdiction . . . if . . . [it] has dismissed all claims over
which it has original jurisdiction,” 28 U.S.C. § 1367(c)(3).
This is a “purely discretionary” decision. Carlsbad Technology,
Inc. v. HIF Bio, Inc., 129 S.Ct. 1862 (2009); Shekoyan v. Sibley
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Intern. 409 F.3d 414, 424 (D.C. Cir. 2005) (“[T]he 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.”) (internal quotation omitted)). I
decline to exercise supplemental jurisdiction here.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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