Dickey v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
MICHAEL DICKEY, )
)
Plaintiff, )
) Civil Action No.15-0577
) (EGS)
v. )
)
UNITED STATES OF )
AMERICA, ET AL., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
On July 1, 2013, Plaintiff Michael Dickey (“Mr. Dickey”),
an employee of the U.S. Department of Transportation (“DOT”),
drove his car into the DOT’s parking garage at 1200 New Jersey
Ave. SE, Washington, D.C. Compl., Docket No. 1 at ¶ 6. Mr.
Dickey alleges that a bicyclist was in his blind spot as he
pulled into his parking spot. Id. at ¶ 7. The cyclist was forced
to stop abruptly. Id. Mr. Dickey and the cyclist engaged in an
altercation, causing Defendant Kurt Alexander (“Officer
Alexander”), a Federal Protective Services officer, and his
partner, Gary Brzozwald, an inspector, to arrive at the scene.
Id. at ¶ 8. After interviews with the altercating parties, Mr.
Dickey was placed under arrest for simple assault. Id. ¶ 9-12.
During his arrest, Mr. Dickey alleges that Officer Alexander
pushed and pulled him, tearing one of the belt loops on his
1
pants. Id. ¶ 12. Mr. Dickey further alleges that Officer
Alexander “used his fingers to manipulate and move Mr. Dickey’s
genitals and penis . . . .” Id. ¶ 13. Mr. Dickey alleges that
his genitals and penis were “fondled” six times by Officer
Alexander during his search of Mr. Dickey incident to arrest,
three times when Officer Alexander used kevlar gloves, and three
times when Officer Alexander used latex gloves. Id. at ¶ 21-23.
Mr. Dickey alleges two counts against the United States and
Officer Alexander in his individual capacity: excessive force
and unreasonable search and seizure in violation of the Fourth
Amendment (Count I); and assault, battery and intentional
infliction of emotional distress under the Federal Tort Claims
Act (“FTCA”) (Count II). Id. at ¶¶ 24-39. Defendants move to
dismiss Mr. Dickey’s complaint for lack of subject matter
jurisdiction and failure to state a claim. Defs.’ Mem. Supp.
Mot. Dismiss, Docket No. 7-1. 1 Upon consideration of the motion,
the response and reply thereto, the applicable law, and the
entire record, Defendants’ Motion is GRANTED in part and DENIED
1 The basis for Defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction under Rule 12(b)(1) is that “the search of
Plaintiff during his arrest [was] a legally authorized touching
and the Supreme Court has determined that a search incident to
arrest is an authorized warrantless search under the Fourth
Amendment and is reasonable under that same Amendment.” Defs.’
Mem. Supp., Docket No. 7 at 4. Because this argument goes to the
merits of Mr. Dickey’s claims, the Court’s analysis is limited
to Defendants Motion to Dismiss for failure to state a claim
under Rule 12(b)(6).
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in part.
I. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The pleading must
contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading
standard does not require detailed factual allegations, but
should be “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Id. at 678. Naked assertions without
factual enhancements or formulaic recitations of the elements of
a cause of action will not suffice. Id. Rather, to survive a
motion to dismiss, a complaint “must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. Plausibility entails that the plaintiff has pled
factual content that is not merely consistent with liability but
allows the Court to draw a reasonable inference that the
defendant is liable for the alleged misconduct. Id.In considering a 12(b)(6) motion, the Court should liberally
view the complaint in the plaintiff’s favor, accepting all
factual allegations as true, and giving the plaintiff the
benefit of all inferences that can be drawn therefrom. Redding
3
v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
II. Analysis
A. The Qualified Immunity Doctrine
A plaintiff may bring suit against federal officials in
their individual capacity for alleged constitutional violations.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 389 (1971). However, qualified immunity protects
government officials from civil liability where their conduct
does not violate “clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24
(D.C. Cir. 2004). At the motion to dismiss stage, a plaintiff
must allege sufficient facts to establish that the defendants
are not entitled to qualified immunity. Patterson v. United
States, 999 F. Supp. 2d 300, 311 (D.D.C. 2013) (internal
citation omitted). The defendant bears the burden of pleading
and proving qualified immunity. Id.As established by the Supreme Court, “the two pertinent
questions in determining whether qualified immunity applies are
(1) whether a constitutional right would have been violated on
the facts alleged; and (2) whether the right was clearly
established at the time of the violation.” Shaw v. District of
Columbia, Case No. 12-0538, 2013 WL 1943032, at *4 (D.D.C. May
4
13, 2013) (quoting Saucier v. Katz, 533 U.S. 194 at 201 (2001)).
In sum, the facts alleged by a plaintiff must establish that the
official violated a right protected by the constitution, and
precedent must be sufficiently well established that a
reasonable officer would have understood prior to acting that
his conduct violates that right.
Here, both of Mr. Dickey’s alleged constitutional
violations——unreasonable search and excessive force——impinge on
the Fourth Amendment, which guarantees the right of the people
“to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . .” U.S. Const.
amend. IV. Each alleged claim will be analyzed below.
i. The facts alleged by Mr. Dickey state a claim for
an unreasonable search in violation of his
clearly established rights under the Fourth
Amendment.
Officer Alexander argues that the search of Mr. Dickey was
permitted under the Fourth Amendment because it was incident to
his arrest. Defs.’ Mem. Supp., Docket No. 7 at 8-9. Mr. Dickey
argues that the circumstances of his arrest did not provide
Officer Alexander any basis to “perpetrate a sexual assault on
him” by manipulating his penis and genitalia six times. Pl.’s
Mem. Opp., Docket No. 9 at 8.
The Fourth Amendment generally requires that law
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enforcement have “probable cause for conducting a search.” U.S.
v. Scott, 987 A.2d 1180, 1195 (D.C. Cir. 2010). However, a
critical exception to this general rule are searches conducted
incident to arrest. Id. As explained by the Supreme Court:
The authority to search the person incident to a lawful
custodial arrest, while based upon the need to disarm
and to discover evidence, does not depend on what a court
may later decide was the probability in a particular
arrest situation that weapons or evidence would in fact
be found upon the person of the suspect. A custodial
arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that
intrusion being lawful, a search incident to the arrest
requires no additional justification.
United States v. Robinson, 414 U.S. 218, 235 (1973). Therefore,
reasonable suspicion that Mr. Dickey possessed a weapon or
illicit substances on his person was not necessary because
Officer Alexander had probable cause to arrest and search Mr.
Dickey for simple assault. See e.g. Pl.’s Mem. Opp., Docket No.
9 at 4, 8 and 10.
Nevertheless, where a search incident to arrest is
unusually intrusive, the search may be deemed unreasonable and
therefore in violation of the Fourth Amendment. WAYNE R. LAFAVE,
SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT 145, § 5.2(c)
(West’s Criminal Practice Series, 6th ed. 2010) (hereinafter
LAFAVE). In Bell v. Wolfish, the Supreme Court established an
analytical framework to determine the reasonableness of a
sexually intrusive search, holding courts must balance “the
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scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in
which it is conducted.” 441 U.S. 520 at 559 (1979); see also
Bame v. D.C., 637 F.3d 380, 387 (D.C. Cir. 2011) (internal
citations omitted); see also Grissom v. Dist. of Columbia, 853
F. Supp. 2d 118, 125 (D.D.C. 2012) (“The “unreasonableness”
inquiry is a particularized one, taking into account the facts
and circumstances of the particular case.”) (internal citations
omitted).
Under certain circumstances, strip searches have been found
unreasonable and in violation of the Fourth Amendment. For
example, in Campbell v. Miller, the Seventh Circuit concluded
that although a search was permissible, the officer’s decision
to conduct a strip search of a male suspected of possessing
marijuana was unreasonable because it was conducted in a
backyard where his neighbors could view the search. 499 F.3d 711at 718. The Court concluded that the search was not reasonable
because it involved “public nudity and exposure of intimate body
parts.” Id. Indeed, courts throughout the country have routinely
condemned as unreasonable intrusive searches conducted in
public. See e.g. Amaechi v. West, 237 F.3d 356, 364 (4th Cir.
2001) (noting that “we have repeatedly emphasized the necessity
of conducting a strip search in private” and concluding that
“[t]he fact that, absent clear justification or exigent
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circumstances, an officer is not allowed to strip an arrestee on
a public street pursuant to a search incident to arrest
necessarily means that an officer cannot go even further than
simply disrobing the arrestee by actually touching and
penetrating the arrestee’s exposed genitalia on the public
street.”); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984)
(finding unconstitutional “routine strip searches in a public
area of persons detained for minor traffic offenses.”).
Here, Mr. Dickey alleges that the search was unreasonable
because Officer Alexander “searched and fondled Mr. Dickey’s
genitals and penis” and “intentionally humiliated Mr. Dickey by
searching his genital region six (6) separate times while in a
public parking garage while in the presence of both officers and
civilian bystanders who worked in the same building where Mr.
Dickey was employed.” Compl. ¶¶ 31, 33. The facts of this case
are notably distinguishable from the authority discussed above
because Mr. Dickey does not allege that he was stripped
searched. 2 Still, accepting all factual allegations as true and
2 In his opposition brief, Mr. Dickey argues that Officer
Alexander’s search was “extremely atypical” and best described
as a “manual body cavity search.” Pl.’s Mem. Opp. at 2, fn 1.
Mr. Dickey attempts to overstate his case. As discussed in
Roberts v. Rhode Island:
A “strip search,” though an umbrella term, generally
refers to an inspection of a naked individual, without
any scrutiny of the subject's body cavities. A
“visual body cavity search” extends to visual
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adopting a liberal view the complaint, the Court cannot conclude
that Officer Alexander’s search of Mr. Dickey’s was reasonable
under the Fourth Amendment. Officer Alexander was surely
entitled to pat Mr. Dickey down before taking him into custody. 3
However, it is not clear that under the circumstances, searching
Mr. Dickey a total of six times with two different sets of
gloves was necessary or reasonable. 4 More importantly, Mr. Dickey
alleges that his genitalia were fondled in such a way as to
constitute a “sexual assault.” Compl. 16. Based on these alleged
facts, Mr. Dickey has stated a claim for an unreasonable search
inspection of the anal and genital areas. A
“manual body cavity search” includes some degree of
touching or probing of body cavities.
175 F. Supp. 2d 176, 182, fn 5 (D.R.I. 2000). Therefore, the
alleged surface touching of genitalia during a pat-down
search incident to arrest that does not probe any body cavity
does not constitute a “manual body cavity search.”
3 In Terry v. Ohio, the Supreme Court noted that a frisk,
presumably less intrusive than a search incident to arrest,
includes “a thorough search of the prisoner’s arms and armpits,
waistline and back, the groin and area about the testicles, and
the entire surface of the legs down to the feet.” 392 U.S. 1 at
17, fn 13 (1968) (citing Priar & Martin, Searching and Disarming
Criminals, 45 J. Crim. L.C. & P.S. 481 (1954)).
4 Officer Alexander argues that the search was conducted within
his discretionary duties, and therefore permissible. Defs.’ Mem.
Supp. at 7. According to the Federal Protective Service (FPS)
Detention and Arrest Directive which states that a search
incident to arrest “should be as thorough as circumstances
allow.” Id., citing FPS Directive 15.5.2.3. Absent discovery
into the circumstances surrounding Mr. Dickey’s arrest, Officer
Alexander’s discretionary duty defense is not persuasive.
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under the Fourth Amendment. See Grissom 853 F. Supp. 2d at 125
(“Although it is a close question . . . the Court cannot find as
a matter of law that the search was reasonable. If Grissom is
able to provide evidence supporting her allegations that the
magnetometer was used to rub her genitals and that the search
continued after she asked the officers to stop, she might
succeed in proving that the search was unreasonable under the
circumstances.”).
The Court also concludes that, assuming Mr. Dickey’s
allegations are true, any reasonable officer would have
understood that, at the time Mr. Dickey was taken in to custody,
repeatedly fondling an individual’s genitals incident to their
arrest would constitute a violation of that persons clearly
established constitutional rights. See e.g. Stewart v. Rouse,
1999 WL 102774, *5 (N.D. Ill, Feb. 22, 1999) (denying qualified
immunity to Officer who allegedly fondled Plaintiff during pat-
down search incident to arrest because “the parameters of a
search incident to arrest as an exception to the warrant
requirement were well-established in 1997” and “objective police
officers could agree that [aggressive groping, grabbing of groin
and breasts] exceeded what was permitted by established law.”).
Defendants argue that “the true test for qualified immunity
in this case was whether it was clearly established that Officer
Alexander was prohibited from alleged touching or manipulating
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the Plaintiff’s genitals through multiple layers of clothing . .
. .” Defs.’ Mem. Reply at 8. Defendants are incorrect. The true
test for qualified immunity in this case is whether, as Mr.
Dickey alleges, the law clearly prohibited fondling such that it
constituted “sexual assault.” Compl. ¶¶ 16-17. It did. See, e.g.
Anderson v. Cornegjo, 199 F.R.D. 228, 259 (N.D. Ill. 2000)
(noting that “no Customs inspector could reasonably believe that
it could be appropriate to fondle a female traveler’s breasts,
crotch area, or buttocks, even above her clothes.”)
Defendants also emphasize that Supreme Court precedent
establishes that a search of an arrestee will be a “relatively
extensive exploration of the person.” Id., citing U.S. v. Scott,
987 A. 2d 1180, 1195 (D.C. 2010). This often cited language is
from the Supreme Court’s decision in Robinson, where the Court
quoted with approval language from Terry. See Terry, 392 U.S. at
25; Robinson, 414 U.S. at 227. Two points deserve emphasis.
First, the Court in Terry noted that “a thorough search must be
made of the prisoner’s arms and armpits, waistline and back, the
groin and area about the testicles, and the entire surface of
the legs down to the feet.” Terry, 392 at fn. 13. A thorough
search of the groin area is distinct from the fondling of
genitalia. To this end, the Court in Robinson also noted that it
would be willing to find unconstitutional a search that was
“extreme or patently abusive.” Id. at 477. A search incident to
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arrest that includes fondling alleged to constitute sexual
assault is “extreme” and “patently abusive.” Put another way, no
reasonable objective officer would conclude that an “extensive
exploration” of a person could include fondling and sexual
assault alleged in this case. For these reasons, Defendants’
Motion to Dismiss Mr. Dickey’s unreasonable search claim under
the Fourth Amendment based on qualified immunity is DENIED.
ii. The facts alleged by Mr. Dickey do not state a
claim for excessive force in violation of his
Fourth Amendment rights.
Defendants argue that the facts pled by Plaintiff are
insufficient to state a claim for excessive force. Defs.’ Mem.
Reply at 3 (“Plaintiff alleges that the illegal forcefulness of
the arrest is evident from the single ripped belt loop on the
Plaintiff’s pants. Plaintiff does not allege that this occurred
because the Inspector was holding onto the belt loop, if the
loop was hooked on the handcuffs, or if it occurred when he was
placed in the police car wearing handcuffs, etc.”). Mr. Dickey
argues that the force used by Officer Alexander started during
the search of Mr. Dickey incident to his arrest and “escalated
to include Defendant Alexander breaking off one of Mr. Dickey’s
belt loops.” Pl.’s Mem. Opp. at 7.
Determining whether the force used to effect a particular
seizure is “reasonable” under the Fourth Amendment requires a
“careful balancing of the nature and quality of the intrusion on
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the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted).
The reasonableness inquiry is an objective one: that is, the
court must determine whether the officer’s actions were
“objectively reasonable” in light of the facts and
circumstances, regardless of any underlying intent or
motivation. Id. Moreover, the Court is mindful that police have
authority to use “some degree of physical coercion” when
arresting a suspect, see Graham, 490 U.S. at 396, and that
“[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the
Fourth Amendment.” Id. (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2nd Cir. 1973)).
In this case, it is alleged that “in the course of
conducting his arrest, Defendant Alexander forcibly pushed and
pulled Mr. Dickey, which resulted in the ripping of one of Mr.
Dickey’s belt loops.” Compl. ¶ 12. Accepting this allegation as
true and drawing all inferences in Mr. Dickey’s favor, the Court
concludes Mr. Dickey has failed to allege facts sufficient to
state a claim for excessive use of force. See e.g. Wasserman v.
Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (holding that even
where plaintiff was not moving or resisting, the arresting
officer’s action of forcefully pressing upwards on plaintiff’s
13
arm before handcuffing him, causing him pain, was not excessive
force); Rogala v. District of Columbia, 161 F.3d 44, 54 (D.C.
Cir. 1999) (concluding that a police officer who grabbed the
arrestee by the arm and pulled her out of the vehicle’s
passenger seat used a reasonable level of force and therefore
committed no constitutional violation); Martin v. Malhoyt, 830
F.2d 237 (D.C. Cir. 1987) (finding that the arresting officer
did not use excessive force by allegedly grabbing a driver by
the waist, throwing him back into the driver’s seat and slamming
door on his legs); compare with Rudder v. Williams, 666 F.3d
790, 795 (D.C. Cir. 2012) (holding that plaintiffs’ allegation
that an officer’s unprovoked use of a baton against children
aged five and 15 constituted a “degree of force unjustified by
the circumstances.”).
Because Mr. Dickey only alleges that his belt loop was torn
due to what he characterizes as “pushing” and “pulling” by
Officer Alexander, he does not allege facts sufficient to state
a plausible claim for excessive use of force in violation of his
Fourth Amendment rights. As such, Defendants’ Motion to Dismiss
Mr. Dickey’s claim of excessive force under the Fourth Amendment
is GRANTED.
B. Mr. Dickey states a claim for battery, assault and
intentional infliction of emotional distress under the
Federal Tort Claims Act (“FTCA”).
Void of a single case citation discussing the FTCA,
14
Defendants contend that Mr. Dickey’s FTCA claims fail based on
the same arguments set forth in opposition to Mr. Dickey’s
unreasonable search claim. Defs.’ Mem. Supp. at 13-15 (“Even
taking the facts as pled, [n]one of these searches were
unreasonable or unlawful under the circumstances and were
authorized by law; and as authorized searches, the touching of
the Plaintiff does not amount to nor does it constitute assault,
battery and intentional infliction of emotional distress.”);
Defs.’ Mem. Reply, Docket No. 10 at 8 (“As discussed above,
although the Plaintiff has alleged that Officer Alexander’s
search violated the rules for a search indecent to arrest, the
Courts have clearly established such a search will be a
‘relatively extensive exploration of the person.’”) (internal
citations omitted)). Plaintiff’s briefing of his FTCA claims,
consisting of three conclusory paragraphs, is equally unhelpful.
Pl.’s Mem. Opp. at 7 and 14.
The United States is immune from suit absent an express
waiver of its sovereign immunity. Kugel v. United States, 947
F.2d 1504, 1506 (D.C. Cir. 1991). The FTCA was enacted in 1946,
designed primarily to “remove the sovereign immunity of the
United States from suits in tort.” Levin v. United States, 133
S.Ct. 1224, 1228 (2013) (internal citations omitted). The FTCA
gives federal district courts exclusive jurisdiction over claims
against the United States for “injury or loss of property, or
15
personal injury or death caused by the negligent or wrongful act
or omission” of a federal employee “acting within the scope of
his office or employment.” Millbrook v. U.S., 133 S. Ct. 1441,
1443 (2013); 28 U.S.C. § 1346 (b)(1).
However, the statute includes a number of exemptions that
protect the Government from liability for certain torts. Id. For
example, the statute includes an “intentional tort exception,”
which preserves the Government’s immunity for “[a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights.” § 2680(h). This means that government employees cannot
be sued for these intentional torts under the FTCA. However, in
1974, Congress carved out an exception to Section 2680(h),
commonly referred to as the “law enforcement provisio,” which
extends the waiver of sovereign immunity to six intentional
torts when alleged as rising out of the wrongful conduct of law
enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93-253,
§ 2, 88 Stat. 50. This means that “anyone empowered by law to
execute searches, to seize evidence or to make arrests for
violations of federal law” may be sued for the following
intentional torts: assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution. Id. In 2013
the Supreme Court held that “the waiver effected by the law
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enforcement proviso extends to acts or omissions of law
enforcement officers that arise within the scope of their
employment, regardless of whether the officers are engaged in
investigative or law enforcement activity, or are executing a
search, seizing evidence, or making an arrest.” Millbrook v.
United States, 133 S. Ct. 1441, 1446 (2013).
Here, Mr. Dickey’s battery and assault claims are feasible
under the FTCA because the waiver of sovereign immunity is
extended to battery and assault by the law enforcement proviso.
Mr. Dickey’s intentional infliction of emotional distress claim
is possible because it is not one of the intentional torts
listed by Congress in the § 2680(h) exception. Each of these
claims are plausibly alleged in connection with Mr. Dickey’s
claim of an unreasonable search in violation of his Fourth
Amendment rights. The burden is on Defendants to show that Mr.
Dickey’s FTCA claims should be dismissed. Because Defendants do
not make any persuasive arguments to that end, Defendants’
Motion to Dismiss Mr. Dickey’s FTCA claims is DENIED. 5
5 Plaintiffs suing under the FTCA must exhaust their
administrative remedies prior to filing suit. McNeil v. United
States, 508 U.S. 106 (1993). “The exhaustion requirement is
jurisdictional.” Hurt v. Lappin, 729 F. Supp.2d 186, 190 (D.D.C.
2010) (citing GAF Corp. v. United States, 818 F.2d 901, 904)
(D.C. Cir. 1987). That is, exhaustion is a “mandatory
prerequisite” to a court suit under the FTCA. Id. Here, Mr.
Dickey alleges that he exhausted his administrative remedies by
“sending notice of his claim to the Federal Protective Services
on or about May 13, 2014 (less than a year after the incident
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III. CONCLUSION
After consideration of the motion, the response and reply
thereto, the applicable law, and the entire record, for the
reasons discussed in this Memorandum Opinion, Defendant’s Motion
is GRANTED in part and DENIED in part. An appropriate order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Court Judge
March 30, 2016
occurred), and more than six (6) months have expired without a
response.” Compl. ¶ 23. Although no evidence of this exhaustion
is attached to Mr. Dickey’s complaint, Defendants do not contest
his claim of proper exhaustion.
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