Jones v. Delaney ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANTOINE JONES, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-277 (RJL)
)
MARIA DELANEY et aI., )
)
Defendants. )
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MEMORANDUM OPINION
Plaintiff Antoine Jones, a prisoner serving a life sentence after a jury conviction on
federal drug trafficking charges, who is proceeding in this action in forma pauperis, has filed a
pro se complaint under 42 U.S.C. § 1983, alleging that several defendants have violated his
constitutional rights and seeking $25 million in damages. Upon the Court's review pursuant to
28 U.S.C. § 1915A, the Court will dismiss the complaint for failure to state a claim upon which
relief may be granted and - with respect to some defendants - because it seeks damages
against defendants who are immune from such relief.
BACKGROUND
The complaint is concerned primarily with a search of the plaintiff s District of Columbia
night club and the ensuing, but futile, efforts to revive the club as a going business after the raid.
The complaint asserts a
civil claim against the District of Columbia ABRA [presumably the Alcoholic
Beverage Regulation Administration, an executive agency of the District of
Columbia government], U.S. Department of Justice, F.B.I., D.C. Metropolitan
Police Department, U.S. Marshal Service, and the following individuals: Maria
Delaney, ABRA; Norma Home, DC MPD; Kelli O'Brien, FBI; Renalda Shaw,
FBI; Rachel Lieber, AUSA; John Giese, AUSA; and unnamed U.S. Marshals for
damages in the amount of $25,000,000 for sabotaging and destroying plaintiffs
business, Levels Entertainment, and for the violation of plaintiff s constitutional
rights by government officials acting in their official capacity under color of law
pursuant to 42 U.S.C. § 1983."
Compl. at 1 (spelling and punctuation corrected). The caption of the complaint identifies an
overlapping, but not identical, set of defendants: "Maria Delaney, ABRA; Norma Home, MPD;
Kelli O'Brien, FBI; Renalda Shaw, FBI; Harold Holden; Skip Kriss, The Richmond Corporation;
Rachel Lieber, AUSA; John Giese, AUSA; and U.S. Marshals Service." Id. (punctuation added).
As relief, the complaint demands $25,000,000 from "the ABRA, D.C. MPD, U.S. Marshal
Service, U.S. Department of Justice, the F.B.1. and others named in this action for their unlawful
actions; to be divided by all who the courts and the jury finds liable in their individual capacity
and their employers for sabotaging and destroying" plaintiffs club. Id. at 6 (punctuation added).
For specifics, the complaint alleges that the law-enforcement agents who carried out the
search inflicted unnecessary damage on the property. Id. at 2. It also alleges that ABRA and its
director Delaney seized the club's liquor license without cause and without a required probable
cause hearing. Id. at 2-3, 5. Further, it alleges that Delaney, and the F.B.I., MPD, and "the
AUSAs named herein blocked every effort" to reacquire a liquor license. Id. at 5. Without
providing specific facts, it alleges that Delaney defamed plaintiffs club. Id. at 3. It alleges that
Holden, an employee of the club who was cooperating with the law-enforcement authorities,
stole club property, and that the MPD "watch [ed] and allow[ed]" this and did not arrest Holden.
Id. at 4. It alleges that the "property manager" of the club's premises, Skip Kriss, and the
presumed landlord, the Richmond Corporation, working through the United States Marshal
Service, did not provide proper notice of eviction. Id. at 5.
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DISCUSSION
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a court to dismiss a
complaint ifit fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
"Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the
... claim is and the grounds upon which it rests," and "detailed factual allegations" are not
necessary; however, to state a claim upon which relief may be granted a plaintiff must furnish
"more than labels and conclusions" or "a formulaic recitation of the elements of a cause of
action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted); see also Papasan v. Allain, 478 U.S. 265, 286 (1986). In determining whether
a complaint fails to state a claim upon which relief may be granted, the Court "must accept as
true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S. Ct.
2197,2200 (2007); see also Twombly, 550 U.S. at 555. The complaint "is construed liberally in
the plaintiffs' favor, and [the Court should] grant plaintiffs the benefit of all inferences that can
be derived from the facts alleged." Kowal v. MCl Communications Corp., 16 F.3d 1271, 1276
(D. C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if
those inferences are unsupported by facts alleged in the complaint; nor must the Court accept
plaintiffs legal conclusions. Kowal, 16 F.3d at 1276; see also Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002).
Plaintiff pleads under 42 U.S.C. § 1983, which provides a right of action for deprivation
of civil rights. In pertinent part, it provides that
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[e ]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or ... the District of Columbia, subjects, or causes to be
subjected, 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. To state a claim under § 1983 for a violation of one's constitutional
protections, 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. City o/Oklahoma City v. Tuttle, 471 U.S. 808, 829
(1985).
Plaintiff s cause of action under § 1983 cannot be maintained against the United States or
its officers because "[s]ection 1983 does not apply to federal officials acting under color of
federal law." Settles v. United States Parole Comm 'n, 429 F.3d 1098, 1104 (D.C. Cir. 2005); see
also District o/Columbia v. Carter, 409 U.S. 418, 425 (1973) (stating that "actions of the
Federal Government and its officers are at least facially exempt" from the proscriptions of
§ 1983). Accordingly, the § 1983 claims will be dismissed for failure to state a claim upon
which relief may be granted. Liberally construing plaintiffs constitutional tort claims as
something other than § 1983 claims would be futile. "The United States, as sovereign, is
immune from suit save as it consents to be sued .... " United States v. Sherwood, 312 U.S. 584,
586-87 (1941). Congress has not waived the federal government's sovereign immunity with
respect to constitutional torts, and therefore the United States is immune from a damages suit for
a constitutional tort. See F.D.IC v. Meyer, 510 U.S. 471 (1994) (holding that the United States
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may not be sued under the Federal Tort Claims Act for a constitutional tort and that federal
agencies may not be sued under Bivens v. Six Unknown Agents 0/ Fed. Bureau o/Narcotics, 403
U.S. 388 (1971)). Thus, the complaint fails to state a claim against the United States Department
of Justice, the Federal Bureau ofInvestigation, and the United States Marshal Service and any of
its agents sued in his or her official capacity, and these defendants will be dismissed from the
case because they are immune from suit. 28 U.S.C. § 1915A(b)(1), (2).
A federal agent may be sued in his or her individual capacity for a constitutional tort in a
so-called Bivens suit, and the caption of the complaint identifies federal agents Home, O'Brien,
Shaw, Lieber, and Giese as defendants. However, the complaint contains no specific factual
allegations of conduct violative of the plaintiff s federal civil rights that could be directly traced
to anyone of those individuals. Home, O'Brien, and Shaw are not even mentioned in the
complaint. The two federal prosecutors, Lieber and Giese, are alleged only to have blocked
efforts to re-acquire the club's liquor license. Assuming, as the court must in this analysis, that
the prosecutors did block re-acquisition of the club's liquor license, and assuming that their
actions injured the plaintiff, I the allegations do not imply a violation of a federal civil right.
Therefore, the complaint fails to state a claim against any federal agent in his or her individual
capacity upon which such relief may be granted, and the individual capacity suits against the
federal agents will be dismissed, as well. 28 U.S.c. § 1915A(b)(1).
An agent of the District of Columbia, that is, a person acting under color of District of
Columbia law, may be sued under § 1983 for violating a citizen's federal civil rights. The
1 It is not evident from the facts pleaded that the plaintiff has standing to bring a claim
for damages on behalf of the club.
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complaint says enough to allege that the MPD, ABRA, and Delaney are District actors for
purposes of § 1983. The plaintiff s complaint, however, does not identify a federal civil rights
violation attributable to the MPD. 2 The complaint alleges that the MPD did not arrest Holden,
even though they had information sufficient to warrant Holden's arrest. The plaintiff has no
constitutional or other federal right or guarantee that operates to require the MPD to arrest
Holden, even ifhe were stealing the plaintiffs property, as alleged. DeShaney v. Winnebago
County Dep't ofSoc. Servs., 489 US 189, 195-96 (1989) (holding that "nothing in the language
of the Due Process Clause itself requires the State to protect the life, liberty, and property of its
citizens against invasion by private actors"). Thus, the MPD's failure to arrest Holden for theft
of plaintiffs property does not constitute a civil rights violation that may be redressed by an
action brought under § 1983, and the claims against the MPD will be dismissed for failure to
state a claim upon which relief may be granted. 28 U.S.c. § 1915A(b)(1).
The complaint fails in the same way with respect to ABRA and Delaney. Very liberally
construed, the complaint might be read to allege a constitutional due process violation with
respect to these two defendants. Nonetheless, the allegation fails to state a claim for a violation
of the plaintiff s federal civil rights because a liquor licensee in the District of Columbia has no
2 In addition, the MPD cannot be sued in its own right, but only as an agency of the
District of Columbia. While a municipality may be sued under § 1983 for civil rights violations,
such a suit may be maintained only if the complaint includes factual allegations tending to show
that the municipality was the driving force behind the civil rights violation, and not on a
respondeat superior theory for the conduct of a wayward municipal employees. Monell v. Dep't
of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). The plaintiffs complaint contains
no such factual allegations. Thus, even if this suit against the MPD were construed as one
against the District of Columbia, the complaint would fail to state a claim upon which relief may
be granted under § 1983. The same is true for ABRA, the other D.C. agency named as a
defendant.
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constitutionally protected property interest in the license, so the due process clause does not
apply.
"To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it. Board of
Regents v. Roth, 408 U.S. 564, 577 (1972). This means an entitlement [to the property] that stands or
To the extent a request appeals to discretion rather than rules, there is no property .... Viewed
functionally, property is what is securely and durably yours under law, as distinct from what you
hold subject to so many conditions as to make your interest meager, transitory, or uncertain."
Bayview-Lojberg's, Inc. v. City of Milwaukee, 905 F.2d 142,145 (7th Cir. 1990) (quoting Scott v.
Village of Kewaskum, 786 F.2d 338, 339-340 (7th Cir. 1986» (finding that because the granting
of the license involved considerable discretion, there was no constitutionally protected property
interest in a liquor license issued by the City of Milwaukee).
The D.C. statutes and regulations governing the issuance and revocation of liquor licenses
vest a great deal of discretion in the Alcohol Beverage Control Board. See D.C. Code § 25-201et seq. For example, the Board evaluates applications for licenses, D.C. Code § 25-201 (c)(2),
including evaluating whether an applicant is of good character and generally fit for the
responsibilities oflicensure, § 25-301(a)(1), and whether the establishment where the liquor
license is to be used is appropriate for its environs, § 25-311 et seq. The Board is authorized to
impose a moratorium on certain classes of licenses in certain areas, or to impose a limit on the
number. D.C. Code § 25-351. The Board also suspends or revokes licenses, D.C. Code § 25-
201 (c )(7), and summary revocation without a hearing is specifically authorized whenever "the
Board determines, after investigation, that the operations of a licensee present imminent danger
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to the health and safety of the public." D.C. Code § 25-826. 3 Because D.C. law does not vest
either an applicant with an entitlement to acquire a license or a licensee with an entitlement to
maintain a license, there is no constitutionally protected property interest in a D.C. liquor license.
Therefore, the due process guarantee of the constitution does not apply to revocations of such a
license or to its re-acquisition, the acts about which the complaint is concerned. Accordingly, the
§ 1983 claims against ABRA and Delaney will also be dismissed for failure to state a claim upon
which relief may be granted. 28 U.S.c. § 1915A(b)(1).
Holden, Kriss, and the Richmond Corporation are private citizens, and therefore, are not
persons acting under color of state law. "[P]rivate citizens, acting in their private capacities,
cannot be guilty of violating due process rights. The Fifth Amendment is a restraint on the
federal government, not on private citizens." Canadian Transport Co. v. Us., 663 F.2d 1081,
1093 (D.C. Cir. 1980). As such, the complaint does not, and cannot, state a claim against any of
them under § 1983, and the § 1983 claims against these three private citizens will be dismissed.
28 U.S.C. § 1915A(b)(1).
To the extent the plaintiff intends to assert violations of the common law or District of
Columbia statutes, this Court declines to exercise supplemental jurisdiction over these claims,
given that all of the claims over which the Court had original jurisdiction will be dismissed at the
outset of this case. 28 U.S.C. § 1367(c) (authorizing a district court to decline to exercise
supplemental jurisdiction over related state law claims if it has dismissed all the claims over
3 The Board does not have unfettered discretion, of course. It is, for example, mandated
to revoke a license where the licensee has knowingly permitted drug trafficking to occur in the
establishment where the liquor license operates. D.C. Code § 25-822(2). See also D.C. Code
§ 25-335(2) (requiring the Board to deny a license to an applicant who knowingly allowed drug
dealing to occur on the premises of an establishment with a liquor license).
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which it had original jurisdiction); see also Ceasar v. Rosstead, 593 F. Supp. 2d 91,93 (D.D.C.
2009).
A separate order accompanies this memorandum opinion.
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RICHARD ON
Dated: United States District Judge
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