McCain v. District of Columbia , 70 F. Supp. 3d 525 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KIMBERLY MCCAIN,
Plaintiff,
v. Civil Action No. 13-1589 (GK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Kimberly McCain ("Plaintiff" or "McCain") brings
this action against the District of Columbia ("the District")
and Metropolitan Police Department ("MPD") Officers Kelvin King
("Officer King") and Richard Moats ("Officer Moats")
(collectively, "Defendants") for negligence, gross negligence,
negligent supervision, intentional infliction of emotional
distress, and violations of her constitutional rights pursuant
to 42 U.S.C. § 1983.
This matter is before the Court on Defendants' Motion to
Dismiss [Dkt. No. 4]. Upon consideration of the Motion,
Plaintiff's Opposition [Dkt. No. 7], Defendants' Reply [Dkt. No.
8] ' Plaintiff's Supplemental Opposition [Dkt. No. 10] '
Defendants' Response to the Supplemental Opposition [ Dkt. No.
11], Defendants' Notice to the Court dated August 14, 2014 [Dkt.
No. 14], and the entire record herein, and for the reasons
stated below, Defendants' Motion shall be granted in part and
denied in part.
I. BACKGROUND
A. Factual Background1
On July 12, 2009, Plaintiff was arrested in the District of
Columbia for drunk driving. Amended Complaint ("Am. Compl. ")
`` 8-9. 2 After failing a series of field sobriety tests, she was
taken to "a police substation" where she was twice administered
a breath alcohol test using a machine known as an Intoxilyzer
5000EN ("Intoxilyzer"). Id. `` 8-10. The results of
Plaintiff's Intoxilyzer tests were 0.34 and 0.37 grams per 210
liters of breath, respectively, indicating that her breath
1
The facts are taken from the Amended Complaint [Dkt. No. 1-2],
documents incorporated by reference in the Amended Complaint,
and facts of which the Court may take judicial notice. See Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)
("In determining whether a complaint states a claim, the court
may consider the facts alleged in the complaint, documents
attached thereto or incorporated therein, and matters of which
it may take judicial notice.") ( citation omitted) . · In
particular, the Court takes judicial notice of the docket in
Plaintiff's criminal case, District of Columbia v. McCain, No.
2009 CTF 016013 (D.C. Super. Ct. July 23, 2009) ("McCain Crim.
Dkt."). See Rogers v. District of Columbia, 880 F. Supp. 2d
163, 166 (D. D.C. 2012) (" [D]ocket sheets are public records of
which the Court can take judicial notice[.]") (citing Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). A copy of the
McCain criminal docket is attached as Exhibit 1 to Defendants'
August 14, 2014, Notice [Dkt. No. 14].
2
The Amended Complaint erroneously states that Plaintiff was
arrested on December 7, 2008, but the parties agree that she was
actually arrested on July 12, 2009. See Pl.'s Opp'n at 1.
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alcohol level was more than four times the legal limit. Id. District charged Plaintiff with three criminal
offenses: ( 1) Driving While Intoxicated ( "DWI") , in violation
of D.C. Code § 50-2201.05(b) (1) (A) (i) (I); (2) Driving Under the
Influence ("DUI"), in violation of D.C. Code 50-
2201.05 (b) (1) (A) (i) (II); and ( 3) Operating While Impaired
( "OWI") , in violation of D.C. Code § 50-2201. 05 (b) ( 2) (A) . See
Am. Compl. 772 A.2d 806, 812-13 (D.C.
2001) (citation omitted); see also D.C. Code §§ 50-
2201.05 (b) (1) (A) (i) (II); 50-2201.05 (b) (2) (2009). The DWI
charge, by contrast, required the prosecution to prove only that
3
D.C. Code § 50-2201.05, which was the operative impaired
driving provision at the time of Plaintiff's arrest, prohibited
driving with an alcohol level at or exceeding .08 grams per 210
liters of breath. See D.C. Code § 50-2201.05(b) (1) (A) (i) (I)
(2009).
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Plaintiff's alcohol levels exceeded .08 grams per 210 liters of
breath. See id. § 50-2201.05 (b) (1) (A) (i) (I).
Plaintiff was advised by her attorney that her Intoxilyzer
results could not be successfully challenged in court, and,
consequently, on October 1, 2009, she pled guilty to the DWI
charge. Am. Compl. 1 17; see also McCain Crim. Dkt. at entries
dated Oct. 1, 2009. On October 8, 2009, she was sentenced to
ten mandatory days in jail, a 28-day residential alcohol
treatment program, $400 in fees and fines, and one year of
supervised probation. Id. 1 18; see also McCain Crim. Dkt. at
entry dated Oct. 8, 2009. 4
On July 26, 2010, after serving her jail time and
satisfying all of the terms and conditions of her sentence,
Plaintiff received a notice from the District of Columbia Office
of the Attorney General ("OAG notice") advising her that the
Intoxilyzer machine used to test her breath alcohol levels on
July 12, 2009, had not been properly maintained and calibrated.
Am. Compl. 11 19, 23. In particular, the OAG notice appears to
have alerted Plaintiff, as she alleges in this case, that
Defendant Officer King, who was responsible for maintaining the
Intoxilyzer machines for the Metropolitan Police Department,
used "out-dated, deteriorated, and uncertified simulator
4
As a result of her conviction, Plaintiff was also terminated
from her employment as an Emergency Technician with the District
of Columbia. Am. Compl. 1 22.
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solutions" to calibrate the machines and failed to test the
machines every three months, in accordance with the
manufacturer's specifications. Id. <][<][ 38-41. Plaintiff alleges
that the "forensically invalid and unscientific procedures" used
by Officer King to calibrate and maintain the machines "resulted
in inaccurate, forensically invalid and inflated Intoxilyzer
readings, which rendered [her] breath test results invalid and
inaccurate." Id. <][<][ 40, 45.
In addition, she claims that the District knew, at least
two years prior to issuance of the OAG notice, that its
Intoxilyzer machines were not properly maintained but failed to
"take any corrective action" until February 26, 2010, when it
"began advising judges that MPD lacked confidence in its breath
test results." Id. <][<][ 52, 53, 56.
On December 6, 2013, Plaintiff filed a motion in the
Superior Court to withdraw her guilty plea and set aside the DWI
conviction. See McCain Crim. Dkt. at entry dated Dec. 6, 2013.
On February 21, 2014, the Superior Court granted that motion and
reinstated all of the original criminal charges, including the
DUI and OWI charges. See Pl.'s Supp. Opp'n, Ex. 1 ·(Sup. Ct.
Order dated Feb. 21, 2014) [Dkt. No. 10]. On June 24, 2014, the
reinstated criminal case proceeded to a bench trial before
Magistrate Judge Rainey Brandt. See McCain Crim. Dkt. at
entries dated June 24, 2014. On July 24, 2014, at the
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conclusion of that trial, the DWI and OWI charges were dismissed
by the prosecution nolle prosequi and Magistrate Judge Brandt
found Plaintiff guilty on the sole remaining charge of DUI. See
McCain Crim. Dkt. at entries dated July 24, 2014.
B. Procedural Background
On July 24, 2013, exactly one year before the conclusion of
Plaintiff's reinstated criminal case, she filed this civil
action in the Superior Court of the District of Columbia. On
October 17, 2013, Defendants removed the case to this Court
[Dkt. No. 1] and on October 24, 2013, they filed the instant
Motion to Dismiss [Dkt. No. 4]. On November 14, 2013, Plaintiff
filed her Opposition [Dkt. No. 7], 5 and on November 25, 2013,
Defendants filed their Reply [Dkt. No. 8].
Thereafter, on February 2 4, 2014, Plaintiff filed a
Supplemental Opposition with information as to the status of her
motion to withdraw her guilty plea in the Superior Court [Dkt.
No. 10 at 1-5]. On March 6, 2014, the District filed a Response
to Plaintiff's Supplemental Opposition [Dkt. No. 11] and, the
same day, Plaintiff filed a Reply to the District's Response
5
On December 4, 2013, Plaintiff also filed a Request for Oral
Argument [Dkt. No. 9], on the asserted basis that Defendants'
Reply brief "raised matters unaddressed" in her initial
Opposition. Because Plaintiff was subsequently permitted to
file both a Supplemental Opposition [Dkt. No. 10] and a Reply to
the District's Response to her Supplemental Opposition [Dkt. No.
12] , and because the Court concludes that resolution of the
instant Motion is appropriate without oral argument, Plaintiff's
Request is denied.
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[Dkt. No. 12]. On August 14, 2014, Defendants filed a Notice
regarding the final disposition of Plaintiff's criminal case
[Dkt. No. 14 at 2].
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b) (6), a
plaintiff need only plead "enough facts to state a claim to
relief that is plausible on its face" and to "nudge [] [his or
her] claims across the line from conceivable to plausible."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"[O]nce a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in
the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success . . . [,] must assume all the allegations in
the complaint are true (even if doubtful in fact) [, and]
must give the plaintiff the benefit of all reasonable inferences
derived from the facts alleged." Aktieselskabet AF 21. Nov.
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)
(internal quotation marks and citations omitted) . A complaint
will not suffice, however, if it "tenders 'naked assertion [ s] '
devoid of 'further factual enhancement.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557)
(alteration in Iqbal) .
-7-
III. ANALYSIS
Defendants seek dismissal of Plaintiff's Amended Complaint
on three grounds. First, they argue that her claims are
untimely. Second, they contend that Counts I-III, each of which
assert common law tort claims, must be dismissed because
Plaintiff failed to comply with the District's mandatory notice
statute, D.C. Code § 12-309. Third, they argue that Count IV,
which asserts a cause of action under 42 U.S.C. § 1983,
constitutes a collateral attack on Plaintiff's criminal
conviction and, therefore, is barred by the Supreme Court's
decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994).
A. Counts I-III Shall Be Dismissed for Failure to Satisfy
D.C. Code § 12-309
The parties agree that Plaintiff's common law tort claims
in Counts . I-III 6 are subject to D.C. Code § 12-309, which
provides:
An action may not be maintained against the District.
of Columbia for unliquidated damages to person or
property unless, within six months after the injury or
damage was sustained, the claimant, his agent, or
attorney has given notice in writing to the Mayor of
the District of Columbia of the approximate time,
place, cause, and circumstances of the injury or
damage. A report in writing by the Metropolitan
Police Department, in the regular course of duty, is a
sufficient notice under this section.
6
Count I is a claim for negligence and gross negligence against
all Defendants. Am. Compl. «JJ«JJ 62-73. Count II is a claim for
negligent supervision against the District. Id. «JJ«JJ 7 4-8 0. Count
III is a claim for intentional infliction of emotional distress
against Officer King and Officer Moats. Id. «JJ«JJ 81-84.
-8-
D.C. Code § 12-309.
The notice requirements in Section 12-309 "serve several
important purposes: they (1) permit the District of Columbia to
conduct an early investigation into the facts and circumstances
surrounding a claim, (2) protect the District of Columbia
against unreasonable claims, and (3) encourage prompt settlement
of meritorious claims." Owens v. Dist. of Columbia, 993 A.2d
1085, 1088 (D.C. 2010) (citations omitted). The Court of
Appeals for the District of Columbia has therefore repeatBdly
held that compliance with S€ction 12-309 is a mandatory
"condition precedent to filing suit against the District[,]" and
"is to be construed narrowly against claimants." Id. (citations
and quotation marks omitted) . 7
Plaintiff concedes that she never filed a writtBn notice of
h€r claims with th€ Mayor of the District of Columbia. Pl.'s
Opp' n at 7-8. She relies instead on the final sentence of
Section 12-309, which states that "[a] rBport in writing by the
Metropolitan Police Department, in the regular course of duty,
is a sufficient notice under this section." D.C. Cod€ § 12-309.
She points to two types of MPD "reports" she contends provided
notice of her claims: ( 1) the police reports preparBd in
7
Section 12-309 does not, however, apply to claims under 42
U.S.C. § 1983. See Brown v. United States, 742 F.2d 1498, 1509-
10 (D.C. Cir. 1984) (en bane), cert. denied, 471 U.S. 1073
(1985).
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connection with her July 12~ 2009, arrest for drunk driving, and
( 2) reports allegedly prepared by MPD in connection with its
investigation into the Intoxilyzer problems in 2010. Pl.'s
Opp'n at 7.
It is well-established that the mere "existence of a police
report 'does not necessarily mean that the District has
received the actual notice which § 12-309 contemplates.'"
Martin v. District of Columbia, 720 F. Supp. 2d 19, 25 (D.D.C.
2010) (citing Allen v. District of Columbia, 533 A.2d 1259, 1262
(D.C. 1987)). This is especially true where, as here, a
plaintiff's civil case asserts claims such as false arrest or
malicious prosecution. See Allen, 533 A.2d at 1263 (holding
that "a police report of an arrest is presumptively devoid of
any notice of a potential claim of injury or damage from false
arrest . or negligence").
A police report will satisfy Section 12-309 only if, among
other things, it actually "'disclose [s] both the factual cause
!
of the [plaintiff's] injury and a reasonable basis for
anticipating legal action as a consequence.'" Jones v. District
of Columbia, 879 F. Supp. 2d 69, 77 (D.D.C. 2012) (quoting
Washington v. District of Columbia, 429 A.2d 1362, 1366 (1981)).
In addition, the report must contain "enough information for the
District to conduct a prompt, properly focused investigation of
[the plaintiff's] claim." Id. at 78.
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Plaintiff has not attached to her pleadings the police
report prepared in connection with her July 12, 2009, arrest for
drunk driving. Furthermore, neither the Amended Complaint nor
the documents incorporated by reference in that Complaint
provide any basis to conclude that such report disclosed the
"factual cause" of the injury asserted in this case i.e.,
Officer King's alleged defective calibration and maintenance of
the Intoxilyzer machine used to test Plaintiff's alcohol levels.
Therefore, the police report issued in connection with
Plaintiff's arrest does not satisfy Section 12-309.
Plaintiff has also failed to attach to her pleadings any
reports prepared by MPD in connection with its investigation
into the Intoxilyzer problems. The only evidence she has
presented regarding MPD' s investigation is a series of emails
among MPD officials in February and March 2010, which discuss
the Intoxilyzer problems generally and refer to a "summary of
the [breath test] problems" prepared by an unidentified author
"for [certain MPD officials' ] use in meetings [.]" See Pl.'s
Supp. Opp'n Ex. 2. Although these emails show that MPD was
generally aware of the Intoxilyzer probl€m, they do not
establish that MPD or any of its employees or agents ever
prepared a report specifically identifying the facts giving rise
to Plaintiff's case. Therefore, they also fail to satisfy
Section 12-309. Jones, 879 F. Supp. 2d at 77-78.
-11-
Finally, Plaintiff argues that "information was
sufficiently available to the District to allow [it] to identify
the . . . tainted prosecutions." Pl.'s Opp'n at 7. But neither
"sufficiently available" information nor "actual notice" define
compliance with Section 12-309. As the Court of Appeals for the
District of Columbia has held, "[f] ailure of a formal notice or
a police report to meet the required specificity would bar the
suit even if [information in the District's possession] actual1y
prompted the city to make an investigation." Campbell v.
District of Columbia, 568 A.2d 107 6, 107 9 (D.C. 1990) (citing
Washington v. District of Columbia, 429 A.2d 1362, 1367 (D.C.
1981)); see also Owens, 993 A.2d at 1089 (D.C. 2010) ("Whether
the District of Columbia had 'actual notice of a potential claim
is not an appropriate consideration under section 12-309.'")
(citing Chidel v. Hubbard, 840 A.2d 689, 695 (D.C. 2004)) . 8
In sum, the law is clear: Section 12-309 is satisfied only
by a specific type of MPD report - one "that covers all the
requisite information, easily found in one place." Jenkins v.
District of Columbia, 379 A.2d 1177, 1178 (D.C. 1977) .
8
Enders v. District of Columbia, 4 A.3d 457, 467-68 (D.C. 2010),
on which Plaintiff relies, is inapposite. The plaintiff in that
case did not rely on a police report to provide the requisite
notice but rather sent a timely notice to the District
indicating his intent to file a false arrest claim. It is
undisputed that Plaintiff never sent such a notice to the
District.
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Plaintiff has not shown that such a report exists.
Consequently, she has not demonstrated compliance with Section
12-309 and her common law tort claims in Counts I-III must be
dismissed. 9
B. Count IV Shall Not Be Dismissed
In Count IV, Plaintiff brings a claim under 42 U.S.C.
§ 1983 for violation of her constitutional rights.
Specifically, she alleges that "[i] f evidence from a properly
certified Intoxilyzer had been utilized, [she] would not have
been subject[ed] to and convicted of an offense with a mandatory
jail term." Am. Compl. Id. Defendants agree that this claim, unlike the common law
tort claims in Counts I-III, is not subject to the notice
requirements in Section 12-309. 10 They contend, however, that it
is barred by the Supreme Court's 1994 decision in Heck v.
9
Having so concluded, the Court shall not address Defendants'
alternative argument that Counts I-III are barred by the statute
of limitations.
10
Defendants originally challenged this claim as untimely.
However, they now concede that "Plaintiff's claim under § 1983 .
. is not time-barred, as Plaintiff only recently was permitted
to withdraw her guilty plea." Defs.' Resp. to Pl.'s Supp. Opp'n
at 5.
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Humphrey, which held that, "in order to recover damages for [an]
allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus[.]" Heck, 512 U.S. at 486-87. 11
At the time Defendants filed their Motion to Dismiss in
October 2013, Plaintiff's DWI conviction had not yet been
vacated and therefore, a malicious prosecution claim did not yet
exist in her favor. However, on February 21, 2014, her
conviction was vacated by the Superior Court, and on July 24,
2014, the District dismissed the DWI charge nolle prosequi at
the conclusion of the bench trial. Consequently, the criminal
charge on which Plaintiff was originally convicted has now been
11
There is a split of authority, and our Court of Appeals has
not yet addressed, whether Heck applies to civil plaintiffs who
are no longer in state custody and therefore do not have access
to habeas corpus relief. See, e.g., Molina-Aviles v. District
of Columbia, 797 F. Supp. 2d 1, 5 & n.5 (D.D.C. 2011) (noting
circuit split and citing cases). It is unnecessary for ·the
Court to take a position on this issue because, even assuming
Heck applies to this case, as discussed below, it does not bar
Plaintiff's claim at the pleading stage.
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"declared invalid by a state tribunal authorized to make such
determination." Heck, 512 U.S. at 487.
Defendants argue that these circumstances are not
sufficient under Heck because although "the DWI charge [was]
dropped by the government, Plaintiff was subsequently
convicted of DUI, an offense that arose from the same facts and
circumstances as the original charge." Defs.' Aug. 14 Notice at
2. They fail, however, to cite any binding authority holding
that conviction of a different offense after retrial necessarily
precludes a Section 1983 plaintiff from showing that her earlier
conviction has been "invalidated" within the meaning of Heck.
As the Second Circuit recently observed:
Heck does not automatically bar a § 1983 claim simply
because the processes of the criminal justice system
did not end up in the plaintiff's favor. A plaintiff
need not prove that any conviction stemming from an
incident with the police has been invalidated, only a
conviction that could not be reconciled with the
claims of his civil action.
Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014)
(emphasis in original) (quoting VanGilder v. Baker, 435 F.3d
689, 692 (7th Cir. 2006)); see also Jackson v. Barnes, 749 F.3d
755, 760 (9th Cir. 2014) ("[U]nder certain circumstances a
plaintiff's § 1983 claim is not Heck-barred despite the
existence of an outstanding criminal conviction against him.").
Defendants concede that the DWI charge on which Plaintiff
was originally convicted required proof of different evidence
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than the DUI charge on which she was later convicted. See Mot.
at 11 ("Plaintiffs' DWI conviction, as opposed to a DUI
conviction or OWI conviction, rested solely on breath test
scores [.] ") (emphasis added); see also id. at 13 ("[A] DWI
conviction is solely dependent on the breath test scores.") .
Furthermore, the evidence on which the now-vacated DWI
conviction was, in Defendants' words, "solely dependent" is the
very evidence Plaintiff claims was tainted by Defendants'
alleged misconduct. Consequently, the DUI conviction can be
reconciled with Plaintiff's claim of malicious prosecution
regarding the DWI charge.
In sum, the record is sufficient to raise a claim that
Plaintiff's DWI charge was dismissed because the District lacked
competent breath test evidence, and that such conviction has
therefore been "invalidated" within the meaning of Heck. See
Molina-Aviles, 797 F. Supp. 2d at 7 (denying motion to dismiss
claims of plaintiffs who had withdrawn guilty pleas to DWI
charges where such charges were awaiting retrial or subsequently
dismissed) . 12
12
The cases cited by Defendants are either inapposite or support
the Court's holding that Plaintiff has stated a claim under
Heck. In Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995),
abrogated on other grounds, Wallace v. Kato, 549 U.S. 384, 387-
92 (2007), the Court of Appeals for the Fifth Circuit held that
a "reversal of a conviction and remand for new trial is not, in
and of itself, a termination" sufficient to support a claim
under Heck, but simultaneously acknowledged that "an order of
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Defendants' motion to dismiss Count IV under Heck shall be
denied.
IV. CONCLUSION
For the foregoing reasons, the District's Motion is granted
as to Counts I, II, and II, and denied as to Count IV. An Order
shall accompany this Memorandum Opinion.
October 6, 2014 Gladys Kess er
United States District Judge
Copies to: attorneys on record via ECF
dismissal reflecting an affirmative decision not to prosecute" a
claim may suffice. Id. at 199. In Harris v. District of
Columbia, 696 F. Supp. 2d 123 (D. D.C. 2010), this Court held
that the plaintiff had not stated a common law claim for
malicious prosecution because, although he alleged that his
criminal charges had been dismissed, he failed to state any
reason for such dismissal or show it was with prejudice. Id. at
133-34. By contrast, the dismissal in this case occurred after
a bench trial, and the pleadings support the infe~ence that such
dismissal resulted from a lack of reliable breath test evidence.
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