Pollard v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANITRA POLLARD, et al., )
)
Plaintiffs, )
)
v. ) No. 12-cv-1010 (KBJ)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In October of 2011, officers from the District of Columbia’s Metropolitan Police
Department (“MPD”) arrested Kevin Witherspoon—a then-29-year-old D.C. resident
with an intellectual disability and a phonological disorder—for his participation in what
is known as a “buy/bust” drug operation. The undisputed facts establish that
Witherspoon got into an unmarked police car with an undercover police officer, and
then, at the officer’s prompting, directed the officer to two different locations, where he
purchased marijuana and cocaine with money the officer provided and brought the
drugs back to the officer. Although Witherspoon was promptly arrested, he was not
ultimately prosecuted; nevertheless, his sisters, Anitra Pollard and Lakeisha
Witherspoon (“Plaintiffs”), have filed the instant action under 42 U.S.C. § 1983 against
MPD and various individual officers (collectively, “Defendants”) to recover for what
they contend was an egregious violation of Witherspoon’s rights. Plaintiffs’ complaint
alleges that Witherspoon’s arrest breached federal and state law in myriad ways, the
most notable of which is the assertion that the officers with whom Witherspoon
interacted violated the Fourth and Fifth Amendments because they lacked probable
cause to arrest him.
Before this Court at present is Defendants’ combined partial motion for summary
judgment on the basis of qualified immunity and partial motion to dismiss the
complaint. Defendants’ motion addresses only the complaint’s constitutional claims,
and given the limited scope of the parties’ discovery thus far, Defendants seek summary
judgment under Federal Rule of Civil Procedure 56 only with respect to the
constitutional claims that hinge on the legitimacy of the arrest: Count I (state
endangerment in violation of the Fifth Amendment), Count II (false arrest in violation
of the Fourth Amendment), and Count IV (Fifth Amendment abuse of process). (See
Def.’s Mem. in Supp. of Defs.’ Mot. to Dismiss & Summ. J. (“Defs.’ Mem.”), ECF No.
101 at 8–9.) 1 In regard to these counts, Defendants argue that, even taking the facts in
the light most favorable to Plaintiffs, Plaintiffs have not established that Witherspoon’s
arrest violated any constitutional right, and that, in any event, no such right was clearly
established. Defendants also request that Plaintiffs’ other constitutional claims—Count
III (unlawful taking under the Fifth Amendment), Count V (state endangerment at the
D.C. jail in violation of the Fifth Amendment), Count VI (failure to protect in violation
of the Fourth and Fifth Amendments), Count VII (failure to train MPD officers in
violation of the First, Fourth, and Fifth Amendments), and Count IX (failure to protect
Plaintiff Lakeisha Witherspoon in violation of the Fifth Amendment)—be dismissed
under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. (See
id.)
1
Page numbers herein refer to those that the Court’s electronic filing system automatically assigns.
2
As explained fully below, after a motion hearing and a thorough review of the
record and the parties’ respective arguments, this Court agrees with Defendants that
none of Plaintiffs’ constitutional claims passes muster under Rule 56 and Rule 12, and
therefore, the Court concludes that Defendants’ motion for summary judgment and
dismissal must be GRANTED. Moreover, the Court will decline to exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claims, and thus, the state
law claims will be DISMISSED WITHOUT PREJUDICE, leaving Plaintiffs free to
pursue them, should they choose to do so, in state court.
A separate order consistent with the memorandum opinion will follow.
I. BACKGROUND
A. Facts Regarding Witherspoon’s Arrest
As mentioned above, this case arises out of a specific encounter between Kevin
Witherspoon and certain officers of the MPD on October 21, 2011. The basic facts
regarding the nature and circumstances of the interaction between the officers and
Witherspoon are hotly disputed; the thrust of each side’s recitation is as follows.
1. Plaintiffs’ Version
According to the Second Amended Complaint, Witherspoon was born with a
severe intellectual disability and has the intellectual capabilities of a child. (See SAC
¶¶ 16–22.) Witherspoon’s mother died in 2004, and he now lives with his sister
Lakeisha Witherspoon and receives support from older sister Anitra Pollard, who is also
his guardian and conservator. (See id. ¶¶ 23–25.)
On October 21, 2011, Lakeisha allowed Witherspoon to leave their residence by
himself and go to the corner store with a small amount of money. The complaint
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alleges that, on his way there, Witherspoon was approached by Defendant Officers
Durham and Hall, who “convinced him” to enter their undercover police vehicle. (See
id. ¶¶ 31–33.) Plaintiffs assert that the officers then drove to an area of known drug
activity, where they (along with the defendant officers Walker, Jackson, and Anderson)
“supervised, directed, and engaged” Witherspoon to negotiate the purchase of marijuana
and cocaine. (See id. ¶ 38.) The complaint states that the officers immediately arrested
Witherspoon and, thereafter, filed a report that failed to mention Witherspoon’s
intellectual disability. (See id. ¶ 40.) Plaintiffs also contend that Witherspoon was
placed in the general population at the D.C. jail, where he “suffered violent threats”
(see id. ¶ 44) and “sustained injury” (see id. ¶ 45).
Plaintiffs assert that, following Witherspoon’s arrest, a grand jury refused to
indict him for these drug transactions, and the United States Attorney declined to
prosecute him. (See ECF No. 30, Exs. 2 & 3.) However, Plaintiffs allege that
Witherspoon was branded a police informant in his community, which placed him and
his family in danger. (See SAC ¶¶ 52.) Their property was allegedly vandalized, and
Plaintiffs assert that they were forced to move due to death threats. (See id. ¶¶ 53–54.)
2. Defendant’s Version
As noted, Defendants contest various salient aspects of Plaintiffs’ story.
According to Defendants, Officer Durham was driving around the Seventh District in an
unmarked vehicle when Witherspoon approached his car and asked for a ride. (See
Defs.’ Statement of Material Facts (“Defs.’ SMF”), ECF No. 101 at 29–31, ¶¶ 2, 5;
Dep. of Hampton D. Durham (“Durham Dep.”), ECF Nos. 101-2 & 108-8, at 7:3–18,
11:15–12:3.) Officer Durham purportedly observed a known gang-affiliation tattoo on
Witherspoon’s face (see Defs.’ SMF ¶ 4); he then asked Witherspoon about obtaining
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marijuana (see id. ¶ 5). Witherspoon allegedly said that he could obtain marijuana for
Officer Durham. (See id. ¶¶ 5.)
Purportedly following Witherspoon’s lead, the officers went back to the
apartment building that Witherspoon had originally emerged from. (See id. ¶ 6.)
Witherspoon entered the building and purchased marijuana in an apartment that he had
been to “plenty of times” before, using money that Officer Durham had given him. (See
id. ¶¶ 5–6.) Defendants assert that Witherspoon then directed Officer Durham to a new
location and purchased cocaine for Officer Durham using money that Officer Durham
had provided. (See id. ¶ 7.) Notably, Officer Durham claimed that he did not perceive
anything unusual about Witherspoon at any point during these interactions (see id. at 31
¶ 8), and after the second drug transaction, the buy/bust team arrested Witherspoon for
distribution of cocaine in violation of 21 U.S.C. § 841 (see id. ¶ 9; Ex. 4 to Defs.’ SMF
at 2).
B. Procedural History
Plaintiffs filed the initial complaint in this matter on June 20, 2012 (see ECF
No. 1), and an amended complaint on September 4, 2012 (see ECF No. 30). The district
judge to whom the case was originally assigned ordered discovery on the sole issue of
whether Witherspoon’s arrest was supported by probable cause. (See ECF No. 32.)
The case was then reassigned to the undersigned on April 4, 2013. After a period of
limited discovery, the parties each moved for summary judgment on the probable cause
question. This Court denied both parties’ motions for summary judgment on February
14, 2014, because genuine issues of material fact remained with respect to whether or
not Officer Durham had probable cause to arrest Witherspoon. (See Order, ECF No.
5
48.) 2
On January 6, 2015, this Court held an initial scheduling conference and the
parties proceeded with broader discovery. During the discovery period, Plaintiffs filed
a motion for leave to file a second amended complaint, which the Court granted (see
ECF Nos. 69, 87), and Plaintiffs filed the new complaint (the one at issue at present) on
May 14, 2015 (see ECF No. 88). Plaintiffs’ Second Amended Complaint (hereinafter
referred to as “SAC”) makes eight claims that allegedly arise under the U.S.
Constitution: state endangerment during the undercover drug operation in violation of
the Fifth Amendment (Count I); false arrest in violation of the Fourth Amendment
(Count II); unlawful taking in violation of the Fifth Amendment (Count III); abuse of
process in violation of the Fifth Amendment (Count IV); state endangerment at the D.C.
jail in violation of the Fifth Amendment (Count V); failure to protect in violation of the
Fourth and Fifth Amendments (Count VI); failure to train MPD officers in violation of
the First, Fourth, and Fifth Amendments (Count VII); and failure to protect Plaintiff
Lakeisha Witherspoon in violation of the Fifth Amendment (Count IX). (See SAC ¶¶
55–143, 150–159.) In addition, the complaint claims that certain Defendants are liable
for negligent training and supervision under D.C. common law (Counts VIII and X). 3
(See id. ¶¶ 144–149, 160–165.)
Shortly after the SAC was filed, Defendants sought to stay discovery, asserting
2
In a series of procedural steps that are not relevant to the instant opinion, this Court also granted and
subsequently vacated its order granting Defendant Wiedefeld’s motion to dismiss, due to newly
discovered audio evidence. (See ECF Nos. 59, 87.)
3
Counts I, II, III, and IX are brought against the District of Columbia and each of the officers allegedly
involved in the undercover drug operation: Hampton Durham, Christopher Hall, Kathleen Wiedefeld,
Desiree Walker, Isaac Jackson, and Sherman Anderson (each in their official and individual capacities).
Count VI is brought against the District, the officers, and Police Chief Cathy Lanier (in her official
capacity). Counts V, VII, VIII and X are brought solely against the District and Chief Lanier.
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that they intended to file a motion to dismiss on the basis of qualified immunity. (See
ECF No. 92.) The Court denied this stay request (see ECF No. 95), and discovery
proceeded.
Defendants filed the instant partial motion for summary judgment and partial
motion to dismiss the complaint on June 16, 2015. (See Defs.’ Mem.) Defendants have
moved for summary judgment on Plaintiffs’ claims of state endangerment (Count I),
false arrest (Count II), and abuse of process (Count IV), and have moved to dismiss the
remaining constitutional claims (Counts III, V, VI, VII, and IX) for failure to state a
claim. (See Def.’s Mot. to Dismiss & for Summ J., ECF No. 101.) In the motion,
Defendants argue that the arresting officers are entitled to qualified immunity because
no constitutional violation took place during the undercover drug operations, and there
was certainly no violation of a clearly established constitutional right, even when the
facts are construed in the light most favorable to Plaintiffs. Defendants assert that this
is so because the full record demonstrates that Officer Durham had sufficient probable
cause to arrest Witherspoon (see Defs.’ Mem. at 12–20), and Plaintiffs’ entrapment-
based argument fails as a matter of law (see id. at 20–23). Defendants also contend that
Plaintiffs’ remaining counts—i.e., the constitutional claims that do not stem directly
from the alleged illegality of Witherspoon’s arrest—fail to allege constitutional
violations (see id. at 23–33). For their part, Plaintiffs’ brief in opposition to
Defendants’ motion disagrees with Defendants’ assessments of the facts and the law;
specifically, Plaintiffs’ argue that the facts are sufficient to demonstrate a series of
established constitutional violations relating to Mr. Witherspoon’s arrest and treatment,
and that they must be allowed to proceed to trial on each of their claims. (See generally
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Pls.’ Resp. to Def.’s Mot. to Dismiss & for Summ. J. (“Pl.’s Resp.”), ECF No. 108.)
Defendants’ motion became ripe on July 17, 2015, and this Court held a hearing
on the combined motion to dismiss and for summary judgment on February 4, 2016.
II. LEGAL STANDARDS
A. Motions To Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to
dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). “Although ‘detailed factual allegations’ are not
necessary to withstand a Rule 12(b)(6) motion, a plaintiff must plead enough facts to
make the claim plausible on its face.” Patterson v. United States, 999 F. Supp. 2d 300,
305 (D.D.C. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[M]ere conclusory statements”
alleging misconduct are not enough; the plaintiff must provide “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.In ruling on a motion to dismiss, “[t]he court must accept as true all factual
allegations in the complaint, and the plaintiff should receive the benefit of all
[reasonable] inferences that can be derived from the facts alleged.” Patterson, 999 F.
Supp. 2d at 305. “[T]he court need not accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The court need not accept the
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plaintiff’s legal conclusions, even if they are couched as factual allegations. See
Twombly, 550 U.S. at 555.
B. Summary Judgment Under Rule 56
Summary judgment must be granted if the moving party demonstrates “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court’s role is “to determine whether there
is a genuine issue for trial,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986),
that is, whether the record contains sufficient evidence “that a reasonable jury could
return a verdict” in the non-movant’s favor, id. at 248.
In the qualified immunity context at the summary judgment stage, the “evidence
of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Kyle v. Bedlion, No. 12-CV-1572, 2016 WL 1301043, at *4 (D.D.C. Apr. 1,
2016) (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam)) (internal
quotation marks omitted). The “judge’s function at summary judgment is not ‘to weigh
the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.’” Tolan, 134 S. Ct. at 1866 (quoting Anderson, 477 U.S. at 249)
(internal quotation marks omitted).
In deciding whether the non-movant has provided enough evidence that a
reasonable jury could return a verdict in his favor, “the court must first identify the
version of events that best comports with the summary judgment standard and then ask
whether, given that set of facts, a reasonable officer should have known that his actions
were unlawful.” Kyle, 2016 WL 1301043, at *4 (quoting Morelli v. Webster, 552 F.3d
12, 19 (1st Cir. 2009)) (internal quotation marks omitted). “This is because, once the
court has determined the relevant set of facts and drawn all inferences in favor of the
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nonmoving party to the extent supportable by the record, the reasonableness of the
officer’s actions is a pure question of law.” Id. (quoting Scott v. Harris, 550 U.S. 372,
381 n. 8 (2007)) (internal quotation marks and alterations omitted).
C. Section 1983 Actions And Qualified Immunity
Section 1983 of Title 42 of the United States Code permits a plaintiff to seek
money damages for the violation of his constitutional rights by any person acting under
color of state law, including an officer of the District of Columbia. See Butera v.
District of Columbia, 235 F.3d 637, 645 (D.C. Cir. 2001); Kyle, 2016 WL 1301043,
at *3. Individual police officers count as state actors for purposes of Section 1983;
however, such officers can get qualified immunity in lawsuits brought against them in
their individual capacities. See Kyle, 2016 WL 1301043, at *3. Qualified immunity
“shields State officials from liability for their discretionary functions ‘insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Butera, 235 F.3d at 646 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In other words, “qualified immunity prevents
officials who violate the law from having to defend against lawsuits for money damages
unless ‘the legal rules that were clearly established at the time [the action] was taken’
gave those officials ‘fair warning’ that they were acting contrary to law.” Kyle, 2016
WL 1301043, at *3 (quoting Messerschmidt v. Millender, 132 S.Ct. 1235, 1245 (2012)).
Once a defendant invokes the defense of qualified immunity, the plaintiff bears
the burden of demonstrating that the defendant is not entitled to its protection. See
Winder v. Erste, 905 F. Supp. 2d 19, 28 (D.D.C. 2012). In evaluating qualified
immunity at the summary judgment stage, the Court undertakes a “two-pronged
inquiry.” Tolan, 134 S.Ct. at 1866. “At the first prong, the Court asks whether the
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facts, taken in the light most favorable to the party asserting the injury, show the
officer’s conduct violated a federal right.” Kyle, 2016 WL 1301043, at *4 (internal
quotation marks, citation, and alterations omitted). “At the second, the Court looks to
the legal rules that were clearly established at the time of the relevant action to
determine whether they gave the officer fair notice that his conduct was contrary to
law.” Id. (internal quotation marks and citations omitted). These two prongs can be
addressed in either order, see Pearson v. Callahan, 555 U.S. 223, 236 (2009), and a
plaintiff must overcome both in order for liability to attach to a state officer who has
claimed qualified immunity.
III. ANALYSIS
Counts I, II, and IV are the core of Plaintiffs’ complaint. Specifically, in Count
I, Plaintiffs allege that the undercover drug operations that led to Witherspoon’s arrest
constituted state endangerment of Witherspoon in a manner that shocks the conscience
and therefore violated his Fifth Amendment rights (see SAC ¶¶ 55–67); in Count II,
Plaintiffs claim that the MPD officers lacked probable cause to arrest Witherspoon and
thereby effected a false arrest in violation of his Fourth Amendment rights, either
because they knew that Witherspoon did not have the mens rea to commit the crime or
because they knowingly entrapped him (see SAC ¶¶ 68–80; Pls.’ Resp. at 7–8, 19, 21);
and in Count IV, Plaintiffs assert that the officers filed a false report in violation of the
Fifth Amendment by falsely asserting the existence of probable cause for Witherspoon’s
arrest (see SAC ¶¶ 93–105). Defendants have moved for summary judgment on these
three counts, arguing that, even with all reasonable factual inferences made in
Plaintiffs’ favor, the record evidence does not reveal any constitutional violations, and
11
certainly not any violations of clearly established constitutional law, and thus, these
claims fail both prongs of the qualified immunity analysis. (See Defs.’ Mem. at 12–23.)
Defendants also contend that Plaintiffs’ various other constitutional claims—including
unlawful taking, inhumane prison conditions, failure to protect, and failure to train—are
meritless. (See Defs.’ Mem. at 23–27.)
For the reasons explained below, this Court concludes that Defendants’
combined motion to dismiss and for summary judgment must be granted in full. With
respect to Counts I, II, and IV, no reasonable jury could find that Defendants violated
Witherspoon’s Fifth Amendment rights to due process or that he was arrested without
probable cause in violation of the Fourth Amendment, and therefore, Plaintiffs have
failed to clear prong one of the qualified immunity hurdle. Moreover, the bare
allegations in the complaint regarding Counts III, V, VI, and VII are not sufficient to
support these constitutional claims; thus, these counts must be dismissed for failure to
state a claim upon which relief can be granted. Furthermore, and finally, with all of the
federal claims disposed of in this manner, this Court has decided to decline to exercise
supplemental jurisdiction over the remaining state law claims (Counts VIII and IX).
A. Plaintiffs Have Not Established The Constitutional Violations Alleged
In Counts I, II, And IV Of The Complaint
As explained above, qualified immunity “shields state actors from ‘liability for
civil damages if their actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known[.]’” Kyle, 2016
WL 1301043 (quoting Tolan, 134 S. Ct. at 1866) (per curiam) (internal quotation marks
and citation omitted). To overcome the qualified immunity barrier to civil liability, a
plaintiff must demonstrate that the officer’s conduct did, in fact, violate a statute or the
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Constitution (prong one of the qualified immunity analysis), and also that the violation
was, or should have been, clear to the officer based on the legal rules that were
established at the time of the officer’s action (prong two). See id. at *4 (internal
quotation marks and citation omitted).
Here, Plaintiffs falter at prong one, as explained below. Even when all
inferences are drawn in Plaintiffs’ favor, no reasonable jury could find that the
undercover buy/bust operation that led to Witherspoon’s arrest constituted a clearly
established violation of his Fifth Amendment rights, nor does the record support
Plaintiffs’ assertion that Defendants violated Witherspoon’s Fourth and Fifth
Amendment rights because the officers lacked probable cause to arrest Witherspoon and
falsely reported otherwise. Moreover, to the extent that Plaintiffs’ lack-of-probable-
cause contentions are based on the belief that Witherspoon did not have the requisite
mens rea to commit the crime for which he was arrested and that the arresting officer
knew this (see, e.g., Pls.’ Resp. at 7–8, 18–19), the Court finds that there is an
inadequate factual basis from which to draw any such conclusion. And with respect to
Plaintiffs’ suggestion that the undercover officers effectively entrapped Witherspoon,
and that this entrapment vitiated probable cause (see, e.g., Pls.’ Resp. at 8), it is well
established that entrapment is not a relevant consideration in the probable cause
inquiry. Thus, Defendants are entitled to summary judgment with respect to Counts I,
II, and IV of Plaintiffs’ complaint.
1. No Reasonable Jury Could Find That The Undercover Drug Operation
Violated Witherspoon’s Fifth Amendment Right To Due Process
Plaintiffs’ first count alleges that the officer defendants violated Witherspoon’s
Fifth Amendment rights by “plac[ing him] in a dangerous situation” (SAC ¶ 56) when
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they asked him to buy drugs, thereby “subjecting him to injury and/or death” (id. ¶ 57)
and causing myriad injuries: physical injury, embarrassment, emotional distress,
humiliation, out-of-pocket costs, medical expenses, loss of enjoyment of life, mental
anguish, and “serious and permanent injuries to his body and mind” (id. ¶ 64).
According to Plaintiffs, Defendants’ “affirmative, reckless, and willful misconduct”
during the buy/bust operation (id. ¶ 59) (emphasis omitted) violated Witherspoon’s
Fifth Amendment due process rights (id. ¶ 60) in a manner that rises to the level of
“state endangerment,” a concept laid out in Butera v. District of Columbia, 235 F.3d
637 (D.C. Cir. 2001). In that case, the D.C. Circuit held that “an individual can assert a
substantive due process right to protection by the District of Columbia from third-party
violence when District of Columbia officials affirmatively act to increase or create the
danger that ultimately results in the individual’s harm.” Butera, 235 F.3d at 651;
accord Fraternal Order of Police Dep’t of Corr. Labor Comm. v. Williams, 375 F.3d
1141, 1144 (D.C. Cir. 2004). The Circuit has also established that, to assert a state
endangerment claim successfully, “the plaintiff must . . . show that the District of
Columbia’s conduct was ‘so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.’” Butera, 235 F.3d at 651 (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
The summary judgment record in the instant case fails to support Plaintiffs’ state
endangerment claim for several reasons. First of all, although the complaint contains a
laundry list of harms, which are stated in the most extravagant terms, 4 there appears to
4
In Count I and throughout the complaint, Plaintiffs describe Defendants’ conduct using sensational
characterizations. (See, e.g., SAC ¶ 57 (describing Defendants’ misconduct as “gross, wanton,
intentional, affirmative, reckless, and willful” (emphasis in original)); id. ¶ 77 (asserting that
Defendants acted “intentionally, affirmatively, wantonly, maliciously, wrongfully, and egregiously”
14
be no evidence in the record of any injury to Witherspoon resulting from his
participation in the buy/bust operation. All parties agree that Witherspoon got into
Durham’s vehicle, purchased marijuana and cocaine with money that Durham provided
him, and was subsequently arrested. But Plaintiffs do not point to any evidence that
indicates that Witherspoon suffered any physical or emotional injuries during this
interaction, and this Court’s review of the record has unearthed none.
Notably, Plaintiffs do not even attempt to argue that Witherspoon actually
suffered any direct harm from the situation; rather, they contend that the situation
exposed Witherspoon to undue danger, even if no harm befell him. (See Pls.’ Resp. at
19–20.) Indeed, Plaintiffs’ brief points to just two pieces of evidence in support of
their state endangerment claim: first, their expert witness, a retired narcotics officer,
opined that it was “unprofessional, unethical, inappropriate, and totally wrong” to
conduct a buy/bust operation with Witherspoon given his intellectual disability (see
Pl.’s Resp. at 19–20 (quoting Report of Retired Narcotics Officer Lamar N. Nowell, Sr.,
ECF No. 75-1, ¶ 2)); and second, Plaintiffs point out that Defendant Hall stated in his
deposition that he takes his service revolver with him when he enters a dope house in
his capacity as an undercover narcotics officers. (See id. at 20 (quoting Dep. of
Christopher Hall, Ex. 5 to Pl.’s Resp., ECF No. 108-14, 93:11–18).) Neither of these
(emphasis in original)); id. ¶ 80 (accusing Defendants of “tortuous [sic] acts accompanied with fraud,
ill will, recklessness, wantonness, oppressiveness [and] willful disregard of Witherspoon’s rights”).)
While Plaintiffs’ liberal use of dramatic adjectives has added some color to their claims, it appears to
have come at the cost of clarity, because it is often quite difficult to discern exactly what Plaintiffs are
alleging in each particular count. For example, Count I is entitled “State Endangerment” (a theory of
liability under the Fifth Amendment), and sounds primarily in due process, but that count also contains
stray accusations that the officers acted “absent probable cause in violation of the Fourth Amendment,”
which appear to belong in Plaintiffs’ false arrest claim (Count II). (Id. ¶ 55; see also id. ¶ 58
(“Defendants had no probable cause to arrest, detain and incarcerate Witherspoon”.).) The complaint is
full of these inconsistencies, and Plaintiffs’ summary judgment briefing is no better. The Court has
done its best to construe Plaintiffs’ filings in a coherent fashion.
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two statements suggests that Witherspoon suffered any harm during the buy/bust
operation, nor does anything in Witherspoon’s testimony. And the lack of any injury is
fatal to Plaintiffs’ state endangerment claim. See Butera, 235 F.3d at 651 (“[U]nder the
State endangerment concept, an individual can assert a substantive due process right to
protection by the District of Columbia from third-party violence when District of
Columbia officials affirmatively act to increase or create the danger that ultimately
results in the individual’s harm.” (emphasis added)); see also Fraternal Order of
Police, 375 F.3d at 1146 n.4 (noting this limitation in Butera’s holding).
Even if Witherspoon’s lack of injury did not doom his state endangerment claim,
Plaintiffs have also failed to show that Defendants’ conduct was so outrageous as to
“shock the contemporary conscience.” See Butera, 235 F.3d at 651. The requirement
that Defendants’ conduct shock the conscience is “stringent,” and “exists to
differentiate substantive due process . . . from local tort law.” Id. This means that
“only the most egregious official conduct” violates due process. Sacramento, 523 U.S.
at 846. And while “something more than negligence but less than intentional conduct,
such as reckless or gross negligence” can satisfy this standard in limited circumstances,
id. at 849—such as when the plaintiff is used in a planned undercover drug buy, see
Butera, 235 F.3d at 651–52 (finding that the officers’ treatment of the plaintiff under
such circumstances could shock the conscience “by meeting the lower threshold of
‘deliberate indifference’”); see Fraternal Order of Police, 375 F.3d at 1145–46—a
police officer only acts with deliberate indifference when he disregards a substantial
risk of serious harm of which he is aware, Farmer v. Brennan, 511 U.S. 825, 828
16
(1994), and Plaintiffs have not shown that any such disregard or other reckless behavior
on the part of the undercover officers took place in the instant case.
To be specific, although every drug transaction undoubtedly involves some level
of danger, nothing in the record indicates that the officers were aware of a substantial
risk of serious harm and disregarded that risk when they asked Witherspoon to buy
marijuana and cocaine. Durham asked Witherspoon if he knew where drugs could be
purchased and asked that Witherspoon buy him certain drugs, and Witherspoon
willingly complied. (See Durham Dep. at 53:11–16, 55:3–19, 59:12–14; Dep. of Kevin
Witherspoon (“Witherspoon Dep.”), ECF Nos. 101-3 & 108-12, at 20:10–21:13, 23:6–
21, 56:19–57:18.) Furthermore, the only two men in the car that day (Witherspoon and
Durham) both testified that it was Witherspoon, not Durham, who provided the
directions to the locations where the drugs were purchased. (See Durham Dep. at
26:19–27:9; Witherspoon Dep. at 20:15–16 (“Q: Okay, and did you show [Durham]
where to go? A: Yeah.”); id. at 25:22–26:2 (“Q: And did you show [Durham] where to
go to or did he already know? A: No, he never knew, I knew.”) Thus, even if
Defendants were previously aware that these locations were associated with the risk of
crime, it was Witherspoon himself who guided them there and exposed them to that
danger.
Furthermore, Defendants’ actions are a far cry from the conduct that courts in
this jurisdiction have found to constitute deliberate indifference in the state
endangerment context. For example, in Briscoe v. Potter, 355 F. Supp. 2d 30 (D.D.C.
2004), several U.S. postal employees alleged that U.S. Postal Service management
knew that the facility where they worked was contaminated with anthrax, but made
17
affirmative misrepresentations about the facility’s safety in order to keep the employees
working there. See id. at 45. In that case, the prior delivery of an Anthrax-laden letter
that had passed through the postal facility had allegedly put Defendants “on notice of
the serious consequences that could result from Plaintiffs’ exposure to anthrax,” id. at
46 (internal quotation marks and citation omitted), and Defendants responded by
“engag[ing] in a campaign of misinformation designed to keep employees at work[,]”
despite the known risk, id. No such “gross disregard for a [known and] dangerous
situation” is apparent or reasonably inferable from the record in this case. Id. Thus,
even if Defendants’ use of Witherspoon (an intellectually disabled individual) to
conduct a buy/bust operation was unethical, as Plaintiffs’ expert opined, it was not so
outrageous under the circumstances presented here as to shock the conscience and
violate substantive due process. 5
In sum, this Court concludes that no reasonable jury could find that Witherspoon
was harmed by the undercover drug operation or that Defendants’ conduct constituted
deliberate indifference; therefore, Defendants did not violate Witherspoon’s Fifth
5
In conducting this analysis, the Court assumes, without deciding, two legal conclusions: (1) that the
state endangerment theory actually applies to an individual who voluntarily participated in the activity
that ultimately caused him harm, like Witherspoon, and (2) that, in such a circumstance, the lesser
deliberate indifference standard would also apply. The former is an open question in this circuit, see
Briscoe, 355 F. Supp. 2d at 48 (citing Butera, 235 F.3d at 654 n. 16), and although Plaintiffs’ complaint
alleges that Witherspoon “was not a willing participant” (SAC ¶ 71), no evidence in the record supports
the conclusion that Witherspoon was coerced or otherwise did not willingly participate in the drug
transactions. As to the latter question, the Butera court concluded that the deliberate indifference
standard applies when the police use an individual in an undercover drug buy that the officers had “the
opportunity to plan . . . with care.” Butera, 235 F.3d at 652. The Circuit drew an analogy to the
situation of an individual in state custody—a circumstance in which the Supreme Court has held that
the lower deliberate indifferent standard applies because prison officials have “the luxury . . . of . . .
time to make unhurried judgments[.]” Id. at 652 (quoting Sacramento, 523 U.S. at 853) (internal
quotation marks omitted). The buy/bust operation at issue in this case appears to have been more
impromptu than the operation in Butera, and therefore less analogous to the custody context and less
amenable to analysis under the deliberate indifference standard. But neither party has addressed either
of these legal questions. Because the Court concludes that Plaintiffs have failed to make out a state
endangerment claim even if the theory does apply and even under the less-demanding deliberate
indifference standard, it need not resolve these unbriefed issues today.
18
Amendment right to substantive due process and are entitled to summary judgment
under prong one of the qualified immunity analysis with respect to Plaintiffs’ state
endangerment claim (Count I).
2. Plaintiffs Have Not Shown That Defendants Lacked Probable Cause To
Arrest Witherspoon And Thus Violated His Fourth Amendment Rights
In Counts II and IV of the complaint, Plaintiffs contend that Witherspoon was
falsely arrested, and Defendants subsequently filed a false police report, in violation of
Witherspoon’s constitutional rights. (See SAC ¶¶ 70, 94.) These two claims are, in
essence, claims that Witherspoon was arrested without probable cause. See Wesby v.
District of Columbia, 765 F.3d 13, 19 (D.C. Cir. 2014), reh’g en banc denied, 816 F.3d
96 (D.C. Cir. 2016) (“As with most false-arrest claims, Plaintiffs’ claims ‘turn on the
issue of whether the arresting officer[s] had probable cause to believe that [Plaintiffs]
committed a crime.’” (quoting Scott v. District of Columbia, 101 F.3d 748, 754 (D.C.
Cir. 1996)) (internal quotation marks omitted) (alterations in original)); Lyles v.
Micenko, 468 F. Supp. 2d 68, 74 (D.D.C. 2006) (explaining that “the existence of
probable cause for the arrest” will defeat a false arrest claim). (See also SAC ¶ 94
(alleging that “Defendants egregiously filed a false report” by “falsely asserting a
finding of probable cause . . .”).) As has been well established, “[p]robable cause exists
where the arresting officer possesses information ‘sufficient to warrant a prudent
[officer] in believing that the [suspect has] committed or [is] committing an offense.’”
United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir.1996) (alterations in original)
(citation omitted)). And Plaintiffs here home in on two theories regarding why a police
officer who indisputably observes a person possessing and distributing a controlled
substance—i.e., a seemingly clear commission of the crime for which Witherspoon was
19
arrested—might nonetheless lack probable cause to arrest that individual. 6 Plaintiffs’
first theory rests on binding precedent: they insist that probable cause requires “at least
some evidence” as to each element of the particular offense, “including the requisite
mental state[,]” Wesby 765 F.3d at 20 (emphasis omitted), and that Officer Durham
knew that Witherspoon did not have sufficient mens rea to commit the drug crime from
which he was arrested due to his mental disability. (See Pls.’ Resp. at 7–8, 18–19; id.
at 21 (“Mr. Witherspoon lacked mens rea to commit a crime[.]”).) Second, Plaintiffs
suggest that, even if the facts and circumstances appeared to satisfy all of the elements
of the drug crime for which he was arrested, the officers themselves orchestrated the
drug sales at issue, and therefore, they could not have reasonably believed that
Witherspoon was committing a crime. (See, e.g., Pls.’ Resp. at 8 (“Ofc. Durham
directed, orchestrated and supervised mentally incapacitated Witherspoon to execute
drug buys he did not even understand”; Defs.’ Mem. at 20 (“Plaintiffs contend that it
was Officer Durham who conceived of and orchestrated the entire series of events,
while Mr. Witherspoon was essentially a passive bystander doing whatever Officer
Durham suggested.” (quoting Oral Ruling Denying Summary Judgment, Sept. 24, 2014)
(alteration omitted).) For the following reasons, neither of these lack-of-probable-cause
theories passes muster in this case.
6
Section 841(a) of Title 21 of the U.S. Code prohibits any person from “knowingly or intentionally . . .
possess[ing] with intent to . . . distribute . . . a controlled substance.” (See Defs.’ Mem. at 17.) This
offense is comprised of three elements: (1) knowingly or intentionally (2) possessing a controlled
substance (3) with the intent to distribute it. Cf. United States v. Tobin, 676 F.3d 1264, 1279–81 (11th
Cir. 2012) (explaining that the offender must “knowingly or intentionally” possess the drug with
“intent” to distribute it).
20
a. The Record Does Not Support Plaintiffs’ Attempt To Cast
Witherspoon As Having Insufficient Mens Rea And Officer
Durham As Knowingly Arresting Him Anyway
To the extent that Plaintiffs have focused on Witherspoon’s potential lack of
mens rea as the basis for challenging the officers’ finding of probable cause (see, e.g.,
Pls.’ Resp. at 18 (“Witherspoon . . . lacks the intellectual capabilities and
comprehension to ‘knowingly’ or ‘intentionally’ . . . possess with intent to . . .
distribute . . . a controlled substance[.]”); see also id. at 7–8 (“After a brief moment of
conversation it was obvious to Ofc. Durham that Witherspoon was mentally
incapacitated with severe speech and language defects. . . . The circumstances were
known to Ofc. Durham that Witherspoon did not commit a crime.”)), their argument has
some legal merit, because the D.C. Circuit has recognized that an intellectual disability
can prevent a defendant from forming the mens rea required for a specific intent crime.
See United States v. Childress, 58 F.3d 693, 729 (D.C. Cir. 1995). It is also clear
beyond cavil that an officer’s knowledge of the suspect’s mental state is relevant to
probable cause. See, e.g., J.H. ex rel. J.P. v. Bernalillo Cty., No. CIV 12-0128
JB/LAM, 2014 WL 3421037, at *101 (D.N.M. July 8, 2014) (“The probable cause
inquiry depends on facts known to the arresting officer at the time of the arrest. If the
facts known to the officer include information about an individual’s disability—and
particularly if the information known to the officer about an individual’s disability
would exculpate the defendant—those facts inform the probable cause calculus.”
(internal quotation marks and citation omitted)), aff’d, 806 F.3d 1255 (10th Cir. 2015).
But for Plaintiffs’ false arrest and false report claims to survive summary judgment on
this theory, a reasonable jury must be able to glean from the evidence presented that
Witherspoon lacked the requisite mens rea and that a reasonable officer on the scene
21
would have known that Witherspoon lacked the mens rea at the time of his arrest, and in
this Court’s view, the record evidence simply does not support these twin findings.
The first failing relates to what the record establishes regarding whether or not
Witherspoon lacked the ability to form the specific intent required under 21 U.S.C.
§ 841(a)(1). To be sure, the psychological evaluations that Plaintiffs have proffered
certainly demonstrate that Witherspoon suffers from serious intellectual disabilities.
For example, an evaluation from May 2015 found that “Witherspoon’s overall ability to
think, reason, and interact effectively with his environment is commensurate with that
of less than 1% of other adults his age” (Comprehensive Psych. Eval. (“2015 Eval.”),
Ex. 1 to Pl.’s Resp., ECF No. 108-3, at 6), and a report from July 2012—closer in time
to his arrest—generally agreed with this assessment (see Confidential Psych. Eval.
(“2012 Eval.”), Ex. 1 to Defs.’ Mem., ECF No. 101-1, at 4). The 2015 report noted that
Witherspoon “exhibit[s] academic skills at around a kindergarten level,” and has “an
intellectual profile of consistent extremely low functioning across domains.” (2015
Eval. at 10; see also 2012 Eval. at 5.) Moreover, consistent with these reports, certain
statements in Witherspoon’s testimony indicate that he does not know, or is confused
about, various basic facts about the world: for example, he testified that President
Obama freed the slaves (Witherspoon Dep. at 58:12–16) and that he did not know what
continent he lived on (id. at 58:10–11).
But in the Court’s view, the psychological reports and testimony do not establish
that Witherspoon was altogether incapable of forming the requisite specific intent;
indeed, quite to the contrary, the 2015 evaluation specifically stated that Witherspoon
“exhibited an adequate vocabulary fund to express and convey his thoughts,” and “[h]is
22
thinking . . . did appear to be reality based, with no evidence of delusions,
hallucinations, or psychotic processes.” (2015 Eval. at 5.) Furthermore, in 2015,
Witherspoon was “able to orally express and convey his thoughts, needs, and
preferences to others” (id. at 10), which was also the case during the 2012
psychological evaluation: the examiner noted that “Witherspoon is able to communicate
with others in his environment using simple language, phrases and sentences . . . He is
able to follow simple instructions with reminders and functions best in a predictable
and structured environment. He is able to comprehend some of what is shared with him
but requires that matters be discussed in simple terms[.]” (2012 Eval. at 6.) Similarly,
although Witherspoon’s deposition transcript demonstrates that he does not know
certain basic pieces of information about U.S. history and global geography, nothing in
his deposition testimony indicates that he is or was unable to form the specific intent
required to buy drugs with the intent to distribute them.
Perhaps most significantly, Plaintiffs’ own version of the events leading up to his
arrest indicates that Witherspoon was able to form the specific intent required to
exchange money for goods. Plaintiffs admit that Witherspoon was on his way to the
corner store when the interaction with Durham took place. (See Pls.’ Resp. at 6 (citing
Affidavit of Lakeisha Witherspoon, Ex. 5 to Pls.’ Resp., ECF No. 108-7, ¶ 16).)
Witherspoon also testified that he asked Durham to drive him to the liquor store so that
he could buy beer. (See Witherspoon Dep. at 17:16–19, 18:13–22; Durham Dep. at
12:1–3.) 7 By his own account, Witherspoon then purchased a can of Icehouse beer at
7
It is unclear from the record whether the liquor store that Kevin Witherspoon and Durham visited is
the same as the corner store that Lakeisha Witherspoon sent Kevin to in the first place, but this
discrepancy is not material to any issue in this case.
23
the liquor store, using his own money. (See Witherspoon Dep. at 19:11–19.) This act—
going to the liquor store with the intent to buy beer, then exchanging money for said
beer—seems to require the same mental state that section 841(a)(1) addresses as applied
to the purchase of drugs, and it is undisputed that Witherspoon was capable of forming
that intent and carrying out the beer-related transaction. Thus, even taking all
reasonable inferences in Plaintiffs’ favor, the record does not support a finding that
Witherspoon was incapable of forming the specific intent required to be guilty of
possession with intent to distribute drugs under 21 U.S.C. § 841(a)(1), as Plaintiffs
maintain. 8
Additionally, even if a reasonable jury could find that Witherspoon was
incapable of forming the mental state the statute requires, this Court concludes that no
reasonable jury could find on this record that Witherspoon was so obviously incapable
that a reasonable officer would have known that he lacked the requisite mens rea.
Indeed, Witherspoon’s own testimony undermines that conclusion. For example,
Witherspoon admits that he voluntarily got into Durham’s car and asked Durham for a
ride to the liquor store. (See Witherspoon Dep. at 17:5–18:14.) He purchased a can of
beer at the liquor store and got back into Durham’s car. (See id. at 19:13–20:2.)
Durham then asked Witherspoon if he knew where he could get drugs, and Witherspoon
said “yeah” and directed him to a building. (See id. at 20:8–19.) Durham then asked,
8
Although Plaintiffs do not frame their argument this way, the specific intent required to commit a
crime under section 841(a)(1) might also be negated if Witherspoon had no understanding of what
marijuana or cocaine were—for example, if he thought the marijuana he purchased was simply
asparagus, then he might not have knowingly possessed a controlled substance. However,
Witherspoon’s own testimony defeats this theory, too. Throughout his deposition, Witherspoon
displays familiarity with the terms “drugs,” “weed,” and “cocaine” (see Witherspoon Dep. at 20:10–14,
21:1–13, 23:6–21), and nowhere does he even suggest that he did not understand the substances that he
purchased using Officer Durham’s money.
24
“What can I get for $20.00?” to which Witherspoon replied, “Some weed.” (See id. at
20:21–21:1.) Durham gave Witherspoon twenty dollars, and Witherspoon entered the
building with the money to purchase marijuana, which he brought back to Durham in
the car. (See id. at 21:1–23:4.) Durham then asked if Witherspoon knew where he
could get “the stuff up your nose.” (See id. at 23:6–7.) When Witherspoon replied,
“What is that stuff, up the nose?”, Durham clarified, “Like powder, like cocaine.” (See
id. at 23:14–16.) Durham asked again if Witherspoon knew where he could get cocaine,
to which Witherspoon replied, “Yes, sir.” (See id. at 23:17–21.) Witherspoon testified
that he then provided the directions to another building; this time he purchased cocaine
using money that Durham had provided, and brought the cocaine back to Durham. (See
id. at 25:7–26:2, 56:19–57:18.) These acts—which Witherspoon admittedly
undertook—are entirely inconsistent with Plaintiffs’ characterization of Witherspoon as
being so obviously incapable of forming the mental state required to violate section
841(a)(1) that a reasonable officer would have known that mens rea was lacking.
Consequently, in this Court’s view, no reasonable jury could find from the record
evidence in this case that Witherspoon lacked the requisite mens rea to commit the
crime of conviction in a manner that was so obvious to the officers who interacted with
him that there was no probable cause to make the arrest.
b. Plaintiffs’ Entrapment Theory Fails As A Matter Of Law
Plaintiffs’ second theory in support of their assertion that Witherspoon’s
constitutional rights were violated due to Durham’s lack of probable cause for the arrest
rests, essentially, on the contention that the officers’ actions constituted entrapment.
(See, e.g., Pls.’ Resp. at 8 (“Ofc. Durham directed, orchestrated and supervised
mentally incapacitated Witherspoon to execute drug buys he did not even understand”);
25
Defs.’ Mem. at 20 (“Plaintiffs contend it was Officer Durham who conceived of and
orchestrated the entire series of events, while Mr. Witherspoon was essentially a
passive bystander doing whatever Officer Durham suggested.” (quoting Oral Ruling
Denying Summary Judgment, Sept. 24, 2014).) It was on the basis of this theory that
this Court denied summary judgment to Defendants on September 24, 2014, and unlike
Plaintiffs’ mens rea theory, the entrapment theory does find support in the factual
record. Specifically, when all reasonable inferences are made in Plaintiffs’ favor, the
record supports a finding that Witherspoon was on a walk to the corner store—minding
his own business—when Durham initiated the interaction. (See Witherspoon Dep. at
15:7–10.) Moreover, it was Durham who indisputably raised the prospect of acquiring
drugs—unprompted—and who provided Witherspoon with the money to facilitate the
transactions on Durham’s behalf. “[T]he ultimate fact to be determined by the jury
[with respect to entrapment] is whether the defendant was ‘predisposed’ to commit the
crime with which he is charged,” United States v. Burkley, 591 F.2d 903, 910 (D.C. Cir.
1978), and there appears to be very little in the instant record that suggests Witherspoon
was predisposed to commit these drug transactions (particularly when read in the light
most favorable to Plaintiffs).
However, the additional briefing that the parties have provided since the initial
summary judgment ruling has persuaded the Court that Plaintiffs’ entrapment-based
theory must fail as a matter of law, because entrapment does not vitiate an arresting
officer’s probable cause. Simply stated, as the Seventh Circuit put it: “[e]ntrapment is
not part of our Fourth Amendment probable-cause-to-arrest analysis.” Humphrey v.
Staszak, 148 F.3d 719, 724 (7th Cir. 1998). That is, inasmuch as assessing the
26
existence of probable cause requires a court to “examine the circumstances [of the
arrest] from the view of an objectively reasonable police officer” in order to determine
if a reasonable officer would have had some evidence as to every element of the
suspected offense, id., courts have long held that entrapment allegations simply do not
bear on that determination. Instead, entrapment is “an affirmative defense of a criminal
defendant to otherwise culpable conduct[,]” id.—i.e., it “is an excuse for a crime, not a
denial of one.” Labensky v. Cty. of Nassau, 6 F. Supp. 2d 161, 177 (E.D.N.Y. 1998)
(emphasis added); see also Torres v. Marquardt, No. 93-CV-2993 JG, 1997 WL
1068680, at *4 (E.D.N.Y. Apr. 3, 1997) (“[T]he entrapment defense reflects a
determination that, although a crime has been committed, no judgment of conviction
should result because of the combination of government inducement and the absence of
predisposition.”). Thus, “[a]lthough the [entrapment] defense relieves a defendant of
his guilt, it does not negate the commission of the crime charged or the existence of any
element thereof.” Id. (internal quotation marks and citation omitted); accord Labensky,
6 F. Supp. 2d at 177; see also Pinter v. City of New York, 448 F. App’x 99, 100 n.5 (2d
Cir. 2011) (“We need not consider whether [the officer’s] methods, which were
undoubtedly aggressive, rose to the level of entrapment, because ‘[w]hile entrapment
may be a proper defense in a criminal action, a police officer’s participation in such
activity does not constitute a constitutional violation.’” (quoting DiBlasio v. City of
New York, 102 F.3d 654, 656–57 (2d Cir. 1996)).
In this case, then, even if Witherspoon was enticed into committing a crime he
was not predisposed to commit, he was not prosecuted for violating 21 U.S.C.
§ 841(a)(1), presumably because a grand jury serving its “vital function [as] . . . a body
27
of citizens that acts as a check on prosecutorial power,” United States v. Cotton, 535
U.S. 625, 634 (2002), declined to issue an indictment. (See Ex. 2 to First Am.
Complaint, ECF No. 30-2.) Witherspoon might well have been able to assert a
successful entrapment defense if he had been subject to prosecution, but courts have
long determined that that defense does not provide an avenue to attack the probable
cause underpinning a suspect’s arrest.
In sum, this Court finds that Defendants are entitled to summary judgment with
respect to Plaintiffs’ Count I (state endangerment), Count II (false arrest), and Count IV
(false police report) because Plaintiffs have failed to establish that there was any
violation of Witherspoon’s constitutional rights with respect to those claims, as the first
prong of the qualified immunity analysis requires. This is because, as explained above,
no reasonable jury could conclude on the basis of the record evidence that the buy/bust
operation transgressed the boundaries of substantive due process as guaranteed by the
Fifth Amendment, and neither of Plaintiffs’ two theories regarding why Witherspoon’s
arrest was not supported by probable cause—that Witherspoon lacked the mens rea
required by the statute and/or that Witherspoon was entrapped—can succeed (the
former is precluded by the record and Witherspoon’s own testimony, and the latter rests
on a misapprehension of the governing law). As a result, Defendants’ motion for
summary judgment with respect to Count I, Count II, and Count IV will be granted.
B. Plaintiffs’ Other Constitutional Contentions Fail To State A Claim Upon
Which Relief Can Be Granted
Defendant has moved to dismiss Plaintiffs’ other Constitution-based claims
(Counts III, V, VI, VII, and IX) under Rule 12(b)(6), arguing that even as alleged in the
Second Amended Complaint, these counts fail to state claims for constitutional
28
violations. (Def.’s Mem. at 9.) The Court agrees with Defendants’ conclusion for the
following reasons.
1. Plaintiffs Have Failed To State A Claim For Unlawful Taking In
Violation Of The Fifth Amendment
In Count III, Plaintiffs allege that “Defendants’ egregious [and] willful taking of
Kevin Witherspoon’s money was in violation of the Fifth Amendment.” (SAC ¶ 82.)
As Plaintiffs’ counsel admitted at oral argument, this claim stems from the allegation
that, at the time of Witherspoon’s arrest, the police confiscated the seven dollars in cash
that he had on his person. (See SAC ¶ 51.)
During the motions hearing, Plaintiffs’ counsel clarified that his takings theory
was based on the idea that Witherspoon’s arrest “was unconstitutional,” and that the
confiscation of his money was unconstitutional as well because it was “part of the
arrest.” (See Feb. 4, 2016 Hr’g Tr. at 51:25–52:1; see also Pls.’ Resp. at 21–22 (“[T]he
taking of Witherspoon’s money was without probable cause, and in violation of his
fundamental Fifth Amendment rights.”) Having already concluded that Witherspoon’s
arrest was supported by probable cause (i.e., not unconstitutional) under the
circumstances presented here, see supra Part III.A.2, this Court also finds that there is
no basis for Plaintiffs’ contention that the confiscation was somehow tainted by the
allegedly faulty arrest. Therefore, Defendants’ motion to dismiss with respect to Count
III must be granted. 9
9
Notably, at the hearing, Plaintiffs’ counsel conceded that this claim might well be moot in any event,
because the seven dollars was eventually returned to Witherspoon, by court order. (See Minute Order
of November 2, 2012; Ex. 5 to Defs.’ Mem., ECF No. 101-5.)
29
2. The Complaint’s Allegations Do Not Establish Inhumane Conditions
Of Confinement In Violation Of The Fifth Amendment
Count V alleges that the District violated Witherspoon’s Fifth Amendment rights
by exposing him to inhumane conditions of confinement in the D.C. jail. (See SAC ¶¶
106–115; Pls.’ Resp. at 22 (“Defendants endangered mentally challenged Witherspoon
by denying humane conditions of confinement.”).) Specifically, Plaintiffs allege that
Witherspoon endured “brutal, violent[] curse words of a homosexual nature” (SAC
¶ 111), which caused Witherspoon to cry and endure both emotional and physical
injuries (see SAC ¶ 114). The nature of the alleged physical injuries are not specified
in the complaint or any subsequent briefing; at oral argument, Plaintiffs’ counsel
claimed only that Witherspoon was frightened and cried in his cell. 10 Ultimately, Count
V must be dismissed on two separate grounds: first, because it fails to allege a
constitutional violation; second, because it fails to allege that Plaintiffs’ harm was the
result of a policy or custom of the District, as required for municipal liability under
Section 1983.
As an initial matter, it is clear to this Court that Plaintiffs’ Count V fails to
allege a Fifth Amendment violation. An official violates the Constitution “for denying
humane conditions of confinement only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take reasonable measures to abate
it.” Farmer v. Brennan, 511 U.S. 825, 847 (1996); see also id. at 34 (“[N]ot . . . every
injury suffered by one prisoner at the hands of another . . . translates into constitutional
10
Indeed, in his deposition, Witherspoon was directly asked whether he was injured in jail.
Witherspoon Dep. at 41:1.). He replied, “No, sir.” (Id. at 41:1–2.)
30
liability for prison officials responsible for the victim’s safety.”). 11 Plaintiffs here have
not alleged any facts that would give rise to such a finding; instead, according to the
complaint, Witherspoon was merely placed in the general jail population, where his
fellow detainees insulted him. (See SAC ¶ 111.) While this Court has no doubt that
pretrial detention is a frightening experience, and perhaps especially frightening for
someone with Witherspoon’s intellectual capacities, nothing in Plaintiffs’ complaint
indicates that Witherspoon faced a substantial risk of serious harm, or that the District
was in any way deliberately indifferent to that risk, even when Plaintiffs’ allegations
are taken as true.
Additionally, this Fifth Amendment claim is improperly pled because the count
of the complaint that asserts that Witherspoon was subjected to inhumane conditions
does not allege that Plaintiffs’ alleged injuries were caused by a municipal policy or
custom. Plaintiffs have brought Count V solely against the District of Columbia and
Chief Lanier in her official capacity, and an official-capacity suit against an individual
is “equivalent to a suit against the municipality itself.” Atchinson v. District of
Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996). Thus, in effect, Plaintiffs have brought
Count V solely against the District, and while municipalities count as “person[s]” for
the purpose of Section 1983, see Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658, 690 (1978), a claim against a municipality—unlike a claim against an officer
in his individual capacity—can proceed only if “the complaint states a claim that a
custom or policy of the municipality caused the violation,” Baker v. District of
11
Although Farmer was an Eighth Amendment case involving convicted prison inmates, courts have
long recognized that the rights of pretrial detainees like Witherspoon are protected by the Fifth
Amendment, and that similar constitutional standards apply. See, e.g., Hardy v. District of Columbia,
601 F. Supp. 2d 182, 188 (D.D.C. 2009).
31
Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003); see Warren v. District of Columbia,
353 F.3d 36, 38 (D.C. Cir. 2004) (“[M]unicipalities are liable for their agents'
constitutional torts only if the agents acted pursuant to municipal policy or custom . . .
Respondeat superior liability does not apply.”). This means that, in order to avoid
dismissal under Rule 12(b)(6), Plaintiffs “bear[] the burden of pleading the existence of
a municipal custom or practice that abridge[d] [Witherspoon’s] federal constitutional or
statutory rights.” Jordan v. District of Columbia, 113 F. Supp. 3d 278, 282 (D.D.C.
2015) (quoting Trimble v. District of Columbia, 779 F.Supp.2d 54, 57 (D.D.C. 2011))
(internal quotation marks omitted).
In this case, the complaint and subsequent briefing are entirely devoid of any
allegations regarding the customs and practices of the District with regard to detaining
suspects arrested for crimes or otherwise. And because Plaintiffs have nowhere
identified a policy, custom, or consistent practice that caused Witherspoon’s alleged
injuries from his time in jail, apart from and in addition to their failure to state a claim
for a predicate constitutional violation, Count V must be dismissed.
3. The Complaint Provides No Legal Or Factual Basis For Plaintiffs’
Failure-To-Protect Claims
Next, Plaintiff raises two different “failure to protect” claims, each of which is
brought against the District, Chief Lanier in her official capacity, and all the individual
MPD officers. Count VI alleges that Defendants violated Kevin Witherspoon’s Fifth
Amendment rights when they failed to protect him after his release from jail (see SAC
¶¶ 116–28), and Count IX alleges that Defendants violated Lakeisha Witherspoon’s
Fifth Amendment rights when they failed to protect her and her family after Kevin
Witherspoon’s release from jail (see SAC ¶¶ 150–59). Specifically, the complaint
32
alleges that Kevin Witherspoon’s interaction with the police led to his being labeled a
police informant in his community, after which he and his family were subjected to
death threats, their property was vandalized, and they were forced to move. (See SAC
¶¶ 53–54, 121, 123, 154.) Plaintiffs further allege that the District contacted Lakeisha
Witherspoon and paid for the family to stay at a hotel for some period of time. (See id.
¶¶ 123, 154.) Plaintiffs claim that Defendants’ use of Witherspoon in their buy/bust
operation “created a special obligation to protect Witherspoon and his family[,]” which
Defendants “accepted . . . by moving them after death threats[,]” but Defendants
subsequently breached this duty by “creat[ing] the danger which caused harm to
Plaintiffs.” (Pls.’ Resp. at 23.)
In general, “a State’s failure to protect an individual from private violence, even
in the face of a known danger, ‘does not constitute a violation of the Due Process
Clause.’” Butera, 235 F.3d at 647 (quoting DeShaney v. Winnebago County Dep’t of
Soc. Servs., 489 U.S. 189, 197 (1989)). This is because “the Due Process Clause[]
generally confer[s] no affirmative right to governmental aid, even where such aid may
be necessary to secure life, liberty, or property interests of which the government itself
may not deprive the individual.” DeShaney, 489 U.S. at 196. However, the Supreme
Court has recognized a narrow exception: in “certain limited circumstances[,] the
Constitution imposes upon the State affirmative duties of care and protection with
respect to particular individuals.” Id. at 198. These circumstances are sometimes
described as a “special relationship” between the individual and the state. See Estate of
Phillips v. District of Columbia, 455 F.3d 397, 406–07 (D.C. Cir. 2006). Notably,
however, the D.C. Circuit has recognized such a relationship only in two circumstances:
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(1) where an individual is placed in some form of involuntary custody, see DeShaney,
489 U.S. at 199–200 (explaining that “when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a corresponding
duty to assume some responsibility for his safety and general well-being”); Butera, 235
F.3d at 647–48 (explaining the custody-based exception to DeShaney); and (2) where
officials have committed state endangerment (as described at length in supra
Part III.A.1); that is, where the officials “affirmatively act to increase or create the
danger that ultimately results in the individual’s harm[,]” Butera, 235 F.3d at 651.
In this case, Plaintiffs have not alleged facts that would give rise to Defendants’
liability for the harms allegedly suffered by Kevin and Lakeisha Witherspoon after
Witherspoon’s arrest. Neither of the Witherspoons were in custody during the alleged
vandalism and death threats, which purportedly took place after Kevin Witherspoon was
released. To the extent that Plaintiffs once again seek to rely on a state endangerment
theory, as in Count I (see Pls.’ Resp. at 23 (“Defendants affirmatively created the
danger which has caused harm to Plaintiffs.”) (citing Butera, 235 F.3d at 651)), the only
actions Defendants took that even arguably created whatever danger the Witherspoons
faced were the arrest and pretrial detention of Kevin Witherspoon (see SAC ¶ 121
(asserting that “Defendants’ . . . use . . . of Kevin Witherspoon . . . in ‘buy/bust’
operations . . . is the proximate cause of [his] . . . being labeled a ‘police informant’ . . .
and placing him and his family in grave danger”; accord Pls.’ Resp. at 23), and this
Court has already determined that those actions were lawful. Plaintiffs point to no case
for the proposition that an individual who was lawfully arrested, detained, and released
has formed a “special relationship” with the state such that the Due Process Clause
34
requires the state to protect the individual and his family subsequently, and this Court
has found none. And because this Court is “mindful of the caution [it] must exercise in
expanding the liberty interests protected by substantive due process[,]” it declines
Plaintiffs’ invitation to expand liability so drastically under the Fifth Amendment.
Butera, 235 F.3d at 651 (quoting Harbury v. Deutch, 233 F.3d 596, 605 (D.C. Cir.
2000)) (internal quotation marks omitted). 12
Undaunted, Plaintiffs argue that the complaint stated a Fifth Amendment failure-
to-protect claim because the District’s decision to place the Witherspoons in a hotel was
equivalent to Defendants’ “accept[ing] the special obligation to protect Witherspoon
and his family.” (Pls.’ Resp. at 23.) Plaintiffs provide no legal support for this
assertion, because none exists. As this Court has already determined, the District had
no special duty to protect the Witherspoons, and putting them up in a hotel did not (and
could not) bind the District to satisfy a legal obligation that it did not have. Moreover,
Plaintiffs do not allege that the Witherspoons’ relocation to a hotel created or in any
way contributed to the death threats and vandalism they suffered. Those harms flowed
solely from Kevin Witherspoon’s arrest, detention, release, and subsequent reception in
his community—none of which form the basis for constitutional liability, as the Court
has already explained. Furthermore, and significantly, even if a relationship did
somehow exist between Defendants and the Witherspoons such that the Fifth
12
In their complaint and subsequent briefing, Plaintiffs cite to various District of Columbia state court
opinions to support their Section 1983 failure-to-protect claims. (See SAC ¶ 124 (citing Wanzer v.
District of Columbia, 580 A.2d 127, 132 (D.C. 1990) and Taylor v. District of Columbia, 776 A.2d
1208, 1214 (D.C. 2001)); Pls. Resp. at 23 (citing Wanzer, 580 A.2d at 132).) This reliance is misplaced
because the cited cases deal with tort liability under District of Columbia common law, see Wanzer,
580 A.2d at 132; Taylor, 776 A.2d at 1214, and liability under the Fifth Amendment’s guarantee of due
process “involves considerations not pertinent to the negligence inquiry,” such that the two should not
be conflated, Butera, 235 F.3d at 652 n.18; see DeShaney, 489 U.S. at 202 (“[T]he Due Process Clause
. . . does not transform every tort committed by a state actor into a constitutional violation.”).
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Amendment required the District to protect them after Witherspoon’s release, Plaintiffs
have not alleged any breach-related conduct that could be considered conscience-
shocking, even under the lower deliberate indifference standard. In other words, the
constitutional standards must be satisfied even when a constitutional right has been
implicated, and Plaintiffs’ complaint contains no allegations that any of the Defendants
were aware of a substantial risk of serious harm to the Witherspoons following Kevin
Witherspoon’s release and subsequently ignored that risk.
In short, Plaintiffs failure-to-protect counts do not state viable claims under the
Fifth Amendment, because Plaintiffs have failed to allege facts that would give rise to
an affirmative obligation on the part of Defendants to protect the Witherspoons after
Kevin Witherspoon’s release from pretrial detention; and, even if such an obligation did
exist, Plaintiffs have failed to allege that Defendants’ conduct was so egregious as to
violate the Plaintiffs’ due process rights. Therefore, Count VI and IX must be
dismissed.
4. Count VII (Failure to Train)
Finally, Plaintiffs allege in Count VII that the District’s failure to train its
officers in dealing with intellectually disabled individuals led to the violation of Kevin
Witherspoon’s First, Fourth and Fifth Amendment rights. (See SAC ¶¶ 129–43.)
Plaintiffs have brought this claim solely against the District, and “in considering
whether a plaintiff has stated a claim for municipal liability, the district court must
conduct a two-step inquiry.” Baker, 326 F.3d 1306. First, the Court “must determine
whether the complaint states a claim for a predicate constitutional violation.” Id.Second, “the [C]ourt must determine whether the complaint states a claim that a custom
or policy of the municipality caused the violation.” Id.36
In this case, Plaintiff plainly fails to clear the first hurdle. With respect to the
complaint’s First Amendment contentions (see SAC ¶ 131; Pls.’ Resp. at 23), nowhere
in the complaint or the subsequent briefing do Plaintiffs even attempt to explain how
the First Amendment is implicated by the arrest and detention at issue in this case, and
bare legal assertions are manifestly insufficient to survive Defendants’ 12(b)(6) motion.
See Kowal, 16 F.3d at 1276. The Fourth and Fifth Amendment allegations are subject
to dismissal for the reasons already discussed. That is, as the Court has already found,
Plaintiffs have not established that the District or its officers violated Witherspoon’s
rights under the Fourth or Fifth Amendments. See supra Parts III.A–B.2. Therefore,
Plaintiffs have failed to allege a predicate constitutional violation upon which to base
their claim for municipal liability, and Count VII must be dismissed.
C. The Court Declines To Exercise Supplemental Jurisdiction Over The
Remaining State Law Claims
At this point in the analysis, this Court has concluded that none of Plaintiffs’
constitutional claims survive Defendants’ omnibus motion for summary judgment and
motion to dismiss. Plaintiffs have made no claim to diversity jurisdiction (see SAC ¶¶
4–5); therefore, “the complaint contains no further federal causes of action over which
this court has original subject matter jurisdiction.” Runnymede-Piper v. District of
Columbia, 952 F. Supp. 2d 52, 60 (D.D.C. 2013). The two remaining counts of
Plaintiffs’ complaint—negligent training and supervision with regard to Kevin
Witherspoon (Count VIII), and negligent training and supervision with regard to
Lakeisha Witherspoon (Count X)—are state law claims with respect to which this Court
originally had supplemental jurisdiction, because “they formed ‘part of the same case or
controversy’ as the federal claims over which it had original jurisdiction.” Kyle, 2016
37
WL 1301043, at *12 (quoting 28 U.S.C. § 1367(a)). But now that the federal claims
have been resolved, this Court must decide whether to retain jurisdiction over the
pendent claims. See Ali Shafi v. Palestinian Auth., 642 F.3d 1088, 1097 (D.C. Cir.
2011) (“Whether to retain jurisdiction over pendent . . . claims after the dismissal of the
federal claims is a matter left to the sound discretion of the district court[.]”).
“General equitable factors guide the decision whether to exercise supplemental
jurisdiction, including judicial economy, convenience, fairness, and comity.” Kyle,
2016 WL 1301043, at *12 (internal quotation marks and citation omitted); accord
Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005). As the Supreme Court has
noted, “in the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988). Moreover, “the D.C. Circuit has cautioned that the Court has
‘an obligation to exercise its discretion to remand the case to the District of Columbia
courts once the federal question, like Elvis, ha[s] left the building.’” Kyle, 2016 WL
1301043, at *12 (quoting Araya v. JPMorgan Chase Bank, N.A., 775 F.3d 409, 417
(D.C. Cir. 2014)).
In the instant case, the Court has determined that these factors weigh in favor of
declining to exercise jurisdiction over the remaining claims. Plaintiffs’ state law claims
sound entirely in District of Columbia tort law, an area of law far more familiar to the
District of Columbia Superior Court. Furthermore, although this case has had a
protracted procedural history in federal court, none of the work put in to date has
addressed Plaintiffs’ state law claims. Considerations of comity and fairness also point
38
in favor of allowing Plaintiffs to pursue their claims, should they choose, in state court.
See Shekoyan, 409 F.3d at 424; Runnymede, 952 F. Supp. 2d at 61. Therefore, this
Court will dismiss the remaining state law claims without prejudice. See, e.g., Kyle,
2016 WL 1301043, at *13 (noting that “no unfairness attaches to [the] decision [to
dismiss the remaining state law claims], because section 1367(d) of Title 28 of the
United States Code ‘tolls the statute of limitation during the pendency of the federal
case and for at least 30 days thereafter’” (quoting Robinson v. Pezzat, 83 F.Supp.3d
258, 271 (D.D.C. 2015))).
IV. CONCLUSION
None of Plaintiffs’ constitutional claims can survive Defendants’ motion under
Rule 12 and Rule 56. Plaintiffs have failed to establish liability under prong one of the
qualified immunity analysis with respect to Plaintiffs’ state endangerment, false arrest,
and abuse of process claims (Counts I, II, and IV), because no reasonable jury could
find that the officers who arrested Kevin Witherspoon lacked probable cause or that
their actions during the buy/bust operation violated his Fourth or Fifth Amendment
rights. In addition, Plaintiffs’ claims for unlawful taking, inhumane conditions of
confinement, failure to protect, and failure to train (Counts III, V, VI, VII, IX) must be
dismissed, because, with respect to each, Plaintiffs’ complaint fails to state a claim
upon which relief could be granted. Accordingly, as explained above and as set forth in
the accompanying order, Defendants’ motion for summary judgment is granted with
respect to Counts I, II, and IV, and judgment will be entered in Defendants’ favor on
those counts; Defendants’ motion to dismiss is granted with respect to Counts III, V,
39
VI, VII, IX, and those claims will be dismissed; and Plaintiffs’ state law claims (Counts
VIII and X) will be dismissed without prejudice.
DATE: June 9, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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