Dukore v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SAMUEL DUKORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-409 (RWR)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs Samuel Dukore and Kelly Canavan bring damages
claims under 42 U.S.C. § 1983 against Metropolitan Police
Department (“MPD”) Officers Michael O’Dea, Robert Reese, and
Hashim Zrien, and Lieutenant Allan Thomas, and Department of
Commerce and Regulatory Affairs (“DCRA”) Inspector Gilbert
Davidson (collectively, the “individual defendants”), alleging
that they violated the First, Fourth, and Fifth Amendments of the
U.S. Constitution and engaged in a civil conspiracy. The
plaintiffs also bring common law claims against the individual
defendants and the District of Columbia, the MPD, and the DCRA.
The defendants move to dismiss the plaintiffs’ second amended
complaint or, in the alternative, for summary judgment. Because
the individual defendants are entitled to qualified immunity from
the plaintiffs’ First and Fourth Amendment claims, and because
the plaintiffs failed to state claims of civil conspiracy, false
arrest, false imprisonment, and procedural due process
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violations, the defendants’ motion will be granted as to those
claims. Because the plaintiffs’ second amended complaint states
a claim for conversion, the defendants’ motion will be denied as
to that claim. At plaintiffs’ request, however, that claim will
be dismissed without prejudice.
BACKGROUND
Plaintiffs are members of the Occupy D.C. movement.1 2d Am.
Compl. ¶ 10. Around 10:00 p.m. on February 13, 2012, the
plaintiffs set up a tent on a sidewalk in Washington, D.C. in
connection with an Occupy D.C. protest. Id. ¶¶ 14, 16; Defs.’
Mot. to Dismiss or, in the Alternative, for Summ. J. (“Defs.’
Mot.”), Stmt. of Material Facts ¶ 1; Pl.’s Stmt. of Facts ¶ 1.
The tent “clearly identified the protest as part of Occupy DC.”
2d Am. Compl. ¶ 20. The MPD defendants warned the plaintiffs
multiple times that if they did not remove the tent, they would
be arrested. Id. ¶¶ 25-27. One of the MPD defendants consulted
1
The plaintiffs describe the Occupy Movement as
a people-initiated movement that commenced with Occupy
Wall Street in Zucotti Park, now called Liberty Square,
in Manhattan’s Financial District in New York City on
September 17, 2011. At its peak, Occupy had spread to
hundreds of cities, towns and states in the United
States and to more than 1500 locations worldwide. The
movement seeks to expose how the wealthiest 1% of
society are promulgating an unfair global economy that
is harming people, and destroying communities
worldwide. The Occupy protesters have come out to
protest and to petition the government for more
economic equality through societal and governmental
changes.
2d Am. Compl. ¶ 11.
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with Inspector Davidson who advised the officer that the
plaintiffs were violating a District of Columbia municipal
regulation. Id. ¶ 25. When the plaintiffs refused to leave the
tent, the MPD defendants arrested the plaintiffs and took the
plaintiffs’ tent. Id. ¶¶ 26-27.
The plaintiffs’ second amended complaint seeks damages from
all of the defendants for false arrest and false imprisonment and
conversion of their tent. The complaint also brings damages
claims under 42 U.S.C. § 1983 against the individual defendants
alleging that the defendants violated the plaintiffs’ rights
under the First, Fourth, and Fifth Amendments. The complaint
also alleges that the individual defendants violated § 1983 by
engaging in a civil conspiracy to violate the plaintiffs’ First
and Fourth Amendment rights.
The defendants move to dismiss the second amended complaint
or, in the alternative, for summary judgment, arguing, in part,
that the individual defendants are entitled to qualified immunity
from the plaintiffs’ constitutional claims. The defendants also
argue that the second amended complaint fails to allege
sufficient facts to state Fifth Amendment and D.C. common law
claims. The plaintiffs oppose.
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DISCUSSION
A complaint may be dismissed under Federal Rule of Civil
Procedure 12(b)(6) when a plaintiff fails to state a claim under
which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
face.” 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Rollins v.
Wackenhut Servs., Inc., 703 F.3d 122, 129-30 (D.C. Cir. 2012).
When considering a Rule 12(b)(6) motion, a court construes
the complaint “in the light most favorable to the plaintiff and
‘the court must assume the truth of all well-pleaded
allegations.’” Bonaccorsy v. District of Columbia, 685 F. Supp.
2d 18, 22 (D.D.C. 2010) (quoting Warren v. District of Columbia,
353 F.3d 36, 39 (D.C. Cir. 2004)). In deciding a motion to
dismiss, a court may consider “only the facts alleged in the
complaint, any documents either attached to or incorporated in
the complaint and matters of which [it] may take judicial
notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997).2
2
In support of their motion, the defendants present matters
outside the pleadings. Because the matters are not considered in
resolving the defendants’ motion, this motion will be treated as
a motion to dismiss and will not be treated as a motion for
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I. CONSTITUTIONAL CLAIMS
The defendants move to dismiss the plaintiffs’ § 1983
damages claims arguing that the individual defendants are
entitled to qualified immunity. Defs.’ Mot., Mem. of P. & A. in
Supp. of Defs.’ Mot. to Dismiss or, in the Alternative, for Summ.
J. (“Defs.’ Mem.”) at 6-18. The defendants also argue that the
plaintiffs did not state a procedural due process claim under the
Fifth Amendment. Id. at 18-21.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[T]he defense
of qualified immunity challenges the complaint for failure to
state a claim upon which relief may be granted.” Bailey v. U.S.
Marshal Serv., 584 F. Supp. 2d 128, 131 (D.D.C. 2008); see also
Ford v. Mitchell, 890 F. Supp. 2d 24, 32 (D.D.C. 2012).
To resolve a government official’s qualified immunity claim,
“a court must decide [(1)] whether the facts that a plaintiff has
alleged . . . or shown . . . make out a violation of a
constitutional right [and (2)] whether the right at issue was
‘clearly established’ at the time of the defendant’s alleged
summary judgment. See Fed. R. Civ. P. 12(d).
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misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)). In analyzing the first issue, courts
determine whether “facts alleged show the officer’s conduct
violated a constitutional right.” Saucier, 533 U.S. at 201.
“The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted.” Id. at 202. Courts may exercise their
discretion as to which of these prongs to address first, because
if a constitutional right is not clearly established, defendants
are entitled to qualified immunity whether or not that right was
violated. See Pearson, 555 U.S. at 236; Jones v. Horne, 634 F.3d
588, 597 (D.C. Cir. 2011).
A. First Amendment claim
The First Amendment guarantees the right to free speech.
U.S. Const. amend. I. The plaintiffs allege that the defendants
violated their clearly established right to be free “from
government disruption of, interference with, or retaliation for,
engagement in free speech, assembly, association, petition and
free press activities,” Mem. of P. & A. in Opp’n to Defs.’ Mot.
to Dismiss or, in the Alternative, for Summ. J. (“Pls.’ Opp’n”)
at 6 (internal quotation marks omitted), by arresting them in
retaliation for their “exercise of their right to express
themselves by displaying a tent as part of Occupy DC,” 2d Am.
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Compl. ¶ 45. The defendants argue that they are entitled to
qualified immunity from the plaintiffs’ First Amendment claim, in
part, because the existing law at the time of the arrest did not
put the officers on notice that their conduct would be clearly
unlawful. If the individual defendants reasonably believed that
the plaintiffs’ actions violated a law, the plaintiffs “had no
clearly established First Amendment right to express [themselves]
as [they] did.” Olaniyi v. District of Columbia, 416 F. Supp. 2d
43, 54 (D.D.C. 2006).
1. Whether the individual defendants reasonably
relied on title 24, section 121.1 of the D.C.
Municipal Regulations
The individual defendants allege that the MPD defendants
arrested the plaintiffs for violating title 24, section 121.1 of
the D.C. Municipal Regulations. Section 121.1 provides that
“[n]o person or persons shall set up, maintain, or establish any
camp or temporary place of abode in any tent . . . on public or
private property, without the consent of the Mayor of the
District of Columbia.” D.C. Mun. Regs. tit. 24, § 121.1.
Generally, an officer is entitled to assume that a
regulation enacted by a state legislature is valid. See Lederman
v. United States, 291 F.3d 36, 47 (D.C. Cir. 2002); cf. Grossman
v. City of Portland, 33 F.3d 1200, 1210 (9th Cir. 1994) (“[A]n
officer who reasonably relies on the legislature’s determination
that a statute is constitutional should be shielded from personal
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liability.”). This is because “‘[t]he enactment of a law
forecloses speculation by enforcement officers concerning its
constitutionality -- with the possible exception of a law so
grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.’” Lederman,
291 F.3d at 47 (quoting Michigan v. DeFillippo, 443 U.S. 31, 38
(1979)). Thus, an officer who relies on a duly enacted
regulation is entitled to qualified immunity unless the
regulation is grossly and flagrantly unconstitutional. See Kroll
v. U.S. Capitol Police, 847 F.2d 899, 902 (D.C. Cir. 1988)
(explaining that “defendant’s entitlement to qualified immunity
raises only a narrow question”).
In their second amended complaint, the plaintiffs argue that
the defendants should have known that § 121.1 was “plainly
unconstitutional on its face and as applied to the Plaintiffs’
conduct” under the First Amendment because the regulation grants
“completely unfettered discretion to the Mayor, without any
standards or guidelines, to determine which protesters are
allowed to establish abodes in tents as expressive activity, or
activity facilitative of speech, and which ones are not.” 2d Am.
Compl. ¶ 30. However, the plaintiffs do not further argue that
the regulation was so grossly unconstitutional that a reasonable
person should have known that it was unconstitutional.3 Because
3
In their opposition, the plaintiffs argue that a
reasonable person would have known that § 121.1 is not narrowly
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the plaintiffs have not shown that § 121.1 was grossly or
flagrantly unconstitutional, the individual defendants were
entitled to assume that § 121.1 was valid.4
tailored to serve a significant government interest and that the
regulation’s licensing scheme does not “‘contain adequate
standards to guide the official’s decision and render it subject
to effective judicial review.’” Pls.’ Opp’n at 13-14 (quoting
Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002)). Even if
the plaintiffs were correct that § 121.1 is not narrowly
tailored, they have not shown that the regulation is flagrantly
unconstitutional. See Lederman, 291 F.3d at 47 (finding that
although regulatory qualifiers “cannot begin to satisfy the
narrow tailoring requirement” the regulation was not grossly
unconstitutional because the regulation made some attempt to
narrow its breadth). Section 121.1 does not require that a
person obtain a permit before using any public space. Instead,
the regulation requires a permit before a person can establish a
“temporary place of abode.” D.C. Mun. Regs. tit. 24, § 121.1.
Thus, there is some attempt to tailor the regulation. Moreover,
contrary to the plaintiffs’ assertion that “there are no
standards [in § 121.1] to guide [the Mayor’s] discretion,” Pls.’
Opp’n at 14, the municipal regulations provide general guidelines
for when the Mayor may issue a permit to use public space, see
D.C. Mun. Regs. tit. 24, § 100.
4
The plaintiffs also argue that the defendants knew or
should have known that § 121.1 “does not prohibit the use of
tents for First Amendment assemblies” because the First Amendment
Assemblies Act (“FAAA”), D.C. Code § 5-331.05(g), “establishes a
right to use a stand or structure in connection with a First
Amendment assembly” without a permit. See 2d Am. Compl. ¶ 31.
Even assuming, as the plaintiffs argue, that § 121.1 is unlawful
under the FAAA, the plaintiffs have shown only that the
defendants applied the wrong law. However, the individual
defendants are still entitled to qualified immunity because
qualified immunity extends to officers who make “mere mistakes in
judgment, whether the mistake is one of fact or one of law.” See
Butz v. Economou, 438 U.S. 478, 507 (1978). Furthermore, if
anything, the alleged conflict between § 121.1 and the FAAA makes
the law, and thus the plaintiffs’ rights under the law, less
clear. Therefore, the plaintiffs have not shown that they had a
clearly established right to set up their tent on a public
sidewalk as part of a protest.
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2. Arresting the plaintiffs
Because the individual defendants were entitled to believe
that § 121.1 was valid, the individual defendants’ “assertion of
qualified immunity to the [plaintiffs’] First Amendment claim
thus hinges on whether a reasonable officer, possessing the same
information as the [individual] defendants, could have viewed the
[plaintiffs’] behavior” as a violation of § 121.1. See Olaniyi,
416 F. Supp. 2d at 54 (internal quotation marks omitted); see
also Pearson, 555 U.S. at 244 (explaining that whether an
officer’s actions violated a clearly established law turns on the
“‘objective legal reasonableness of the action, assessed in light
of the legal rules that were clearly established at the time it
was taken’” (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999))).
An officer must have probable cause to support making an
arrest. See U.S. Const. amend. IV. Thus, the individual
defendants are immune from suit if “reasonable officers in their
positions ‘could have believed that probable cause existed to
arrest [the plaintiffs].’” Reiver v. District of Columbia, 925
F. Supp. 2d 1, 7 (D.D.C. 2013) (quoting Hunter v. Bryant, 502
U.S. 224, 228–29 (1991)). A police officer has probable cause
for an arrest if the officer “ha[s] enough information to warrant
a man of reasonable caution in the belief that a crime has been
committed and that the person arrested has committed it.” Barham
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v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006) (internal quotation
marks omitted).
The plaintiffs allege that the individual MPD defendants did
not have probable cause to arrest them for violating § 121.1.
See Pls.’ Opp’n at 7-12. The defendants counter that the
plaintiffs have not shown that it would have been clear to a
reasonable officer that the plaintiffs were not violating
§ 121.1. Defs.’ Mem. at 16-17.
The defendants argue that the individual MPD defendants had
probable cause to arrest the plaintiffs because the plaintiffs
set up a tent on a public sidewalk and were inside the tent after
10:00 p.m. They contend that a tent is a “traditional ‘temporary
place of abode’” and the officers had reasonable cause to believe
that a tent occupied late at night was a “temporary place of
abode.” See id. at 13-14; see also Reply to Pls.’ Opp’n to
Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J.
(“Defs.’ Reply”) at 17. Because the tent was set up on a public
sidewalk at a time when most people sleep, tents are commonly
used as temporary abodes, and the plaintiffs did not have a
permit, say the defendants, it was reasonable for the individual
defendants to believe that the plaintiffs were violating § 121.1.
The plaintiffs admit that they set up a tent on the
sidewalk, see 2d Am. Compl. ¶ 16, but they argue that the
defendants did not have probable cause to believe that the tent
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was an “abode” for at least two reasons. First, they argue that
“there was no visible sleeping/living equipment inside or around
the tents.” Id. ¶ 28. Second, they argue that the tent was not
an abode because signs and messages on the tent demarcated it as
“clearly part of a protest,” id., and that evidence that the tent
was part of a protest negates any presumption that the tent was
being used as an abode, see Pls.’ Opp’n at 9.5
The plaintiffs have not shown that it was unreasonable for
an officer to believe, even mistakenly, that a tent occupied late
at night was a temporary abode under § 121.1 because there was no
visible sleeping and living equipment. For instance, the
plaintiffs have not shown that it was unreasonable for an officer
to believe that they could have temporarily resided in the tent
without additional equipment or that the plaintiffs could reside
in a sparsely populated tent. Moreover, § 121.1 does not require
that all “abodes” contain sleeping and living materials.
Similarly, that the plaintiffs’ tent had signs and messages
on it did not make the officers’ conduct unreasonable. The
plaintiffs admit that other Occupy D.C. protestors were using
tents as both instruments of protest and abodes several blocks
5
Plaintiffs also argue that because they had not yet slept
in the tent, it was not an abode, and that at the time of their
arrest there was only a remote possibility that they would use it
as an abode at some point in the future. See Pls.’ Opp’n at 11.
However, § 121.1 prohibits setting up a temporary abode and does
not require a person to have already slept in the abode for a
violation to occur. See D.C. Mun. Reg. tit. 24, § 121.1.
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away. See Pls.’ Opp’n at 9-10. The plaintiffs identified
themselves to the officers as part of the Occupy movement. See
2d Am. Compl. ¶ 20. It was not unreasonable for the individual
defendants to believe that the plaintiffs’ tent was being used
both as a sign of protest and an abode.6 See Defs.’ Reply at 17.
Accordingly, the individual defendants are entitled to qualified
immunity on the plaintiffs’ claim that arresting them violated
their rights under the First Amendment because it was not
unreasonable for the individual defendants to believe that
probable cause existed that the plaintiffs were violating
§ 121.1.
3. Taking the plaintiffs’ tent
“[W]hile the general rule under the Fourth Amendment is that
any and all contraband, instrumentalities, and evidence of crimes
may be seized on probable cause (and even without a warrant in
various circumstances), it is otherwise when materials
presumptively protected by the First Amendment are involved.”
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989). The
plaintiffs argue that their tent was material “presumptively
protected by the First Amendment.” As such, taking their tent,
even after a valid arrest, violated the First Amendment. See
6
The fact that other Occupy D.C. protestors in Farragut
Park were using tents as abodes does not itself establish
probable cause or create “guilt by association,” as the
plaintiffs suggest. Pls.’ Opp’n at 9. Rather, a reasonable
officer would understand that some tents used to protest can also
be abodes.
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Pls.’ Opp’n at 24. In Fort Wayne Books, the Supreme Court
considered whether seizing pretrial all of the publications of a
bookstore that was allegedly distributing obscene materials was
constitutional. There, Fort Wayne Books was charged, along with
two other corporations, with violating Indiana’s RICO law by
“engag[ing] in a pattern of racketeering activity by repeatedly
violating the state laws barring the distribution of obscene
books and films.” Fort Wayne Books, 489 U.S. at 51. The trial
court found that there was probable cause that the bookstore had
violated Indiana’s RICO law and ordered that the bookstore,
including all of its publications, be seized. The Supreme Court
reversed the pretrial seizure order. The Court held that
“[w]hile a single copy of a book or film may be seized and
retained for evidentiary purposes based on a finding of probable
cause, the publication may not be taken out of circulation
completely until there has been a determination of obscenity
after an adversary hearing.” Id. at 63. Thus, there is an
exception to the general rule that any evidence of a crime can be
“seized on probable cause” where “materials presumptively
protected by the First Amendment are involved.” Id.Here, the plaintiffs assume without explanation that Fort
Wayne Books applies to this case. However, Fort Wayne Books was
an obscenity case and the plaintiffs have not established that
their case is entitled to the same additional protections. Cf.
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Boggs v. Rubin, 161 F.3d 37, 41 (D.C. Cir. 1998) (noting that
Fort Wayne Books is an obscenity case “where significant judgment
was needed to determine if the seized materials violated
community standards” and distinguishing the seizure of
counterfeit currency an artist created because “[t]he important
First Amendment concerns advanced by the Supreme Court in the
obscenity cases [were] not present to the same extent” in the
counterfeit currency case). Even if Fort Wayne Books could apply
to the seizure of all tents of Occupy D.C. protestors, the
plaintiffs complain only that it was unconstitutional for the
officers to take their one tent. Taking the plaintiffs’ single
tent is more similar to seizing a single copy of a book -- which
the Fort Wayne Books Court allowed on a finding of probable cause
-- than to taking all copies of a publication completely out of
circulation, which requires a greater showing. Because the
plaintiffs have not shown that taking their tent requires more
than a showing of probable cause, seizing the plaintiffs’ tent
after a valid arrest did not violate the plaintiffs’ First
Amendment rights. Thus, the individual defendants are entitled
to qualified immunity from the plaintiffs’ claim that taking
their tent violated the First Amendment.
B. Fourth Amendment claim
The Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. amend. IV. The plaintiffs allege that the
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defendants violated this clearly established right. The
defendants counter that the officers had probable cause to arrest
the plaintiffs and thus did not violate the plaintiffs’ Fourth
Amendment rights.
1. Arresting the plaintiffs
An officer making an arrest is entitled to qualified
immunity where clearly established law does not show that the
seizure violates the Fourth Amendment. “It is well settled that
an arrest without probable cause violates the [F]ourth
[A]mendment.” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir.
1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). As is
discussed above, it was reasonable for the individual defendants
to believe that probable cause existed to arrest the plaintiffs
for violating § 121.1. Thus, the defendants are entitled to
qualified immunity from the plaintiffs’ claim that their arrest
violated the Fourth Amendment because the facts alleged do not
show that the defendants’ conduct violated the plaintiffs’ Fourth
Amendment rights.
2. Taking the plaintiffs’ tent
The plaintiffs also claim that taking their tent without a
warrant violated their Fourth Amendment rights. 2d Am. Compl.
¶ 51. Seizure incident to arrest is justified “when used to
seize the fruits, implements or evidence of the crime for which
the arrestee is seized in order to prevent its destruction.”
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United States v. Green, 465 F.2d 620, 621-22 (D.C. Cir. 1972).
Here, the plaintiffs were reasonably arrested for violating
§ 121.1. During their arrest, the defendants seized the
plaintiffs’ tent which the officers could reasonably believe was
a temporary abode. Because § 121.1 makes setting up a temporary
abode in a tent in a public place illegal, it was reasonable for
the officers to believe that the tent was evidence that the
plaintiffs violated § 121.1.
C. Fifth Amendment claim
“The Fifth Amendment Due Process Clause protects individuals
from deprivations of ‘life, liberty, or property, without due
process of law.’” Atherton v. D.C. Office of the Mayor, 567 F.3d
672, 689 (D.C. Cir. 2009) (quoting U.S. Const. amend. V). The
plaintiffs allege that the defendants took their tent without
notice or a hearing, and without providing the plaintiffs “an
opportunity to present their claim of entitlement to recover the
property,” in violation of the Fifth Amendment’s procedural due
process guarantee. See 2d Am. Compl. ¶¶ 58-59. The defendants
argue that the plaintiffs have not stated a procedural due
process claim.
“In general, a procedural due process violation consists of
a (1) deprivation by the government, (2) of life, liberty, or
property, (3) without due process of law.” Spadone v. McHugh,
864 F. Supp. 2d 181, 188 (D.D.C. 2012); see also Propert v.
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District of Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991).
Where adequate post-deprivation state remedies are available, no
cognizable constitutional claim for procedural due process can be
stated. Crawford v. Parron, 709 F. Supp. 234, 237 (D.D.C. 1986)
(citing Parratt v. Taylor, 451 U.S. 527 (1981)).
D.C. law provides that confiscated property may be returned
to the owner “[u]pon satisfactory evidence of the ownership of
property.” D.C. Code § 5-119.06(a). “Seizure or impoundment of
property by the Metropolitan Police Department from an individual
is prima facie evidence of that person’s ownership of the
property.” D.C. Code § 5-119.06(a-1). Because this adequate
post-deprivation remedy exists, see Dickson v. Mattera, 38 F.
App’x 21, 22 (D.C. Cir. 2002), the plaintiffs cannot state a
procedural due process claim.7
III. SECTION 1983 CIVIL CONSPIRACY CLAIM
The plaintiffs allege that the individual defendants
conspired to violate the plaintiffs’ First and Fourth Amendment
rights. To state a civil conspiracy claim, a plaintiff must
demonstrate
7
In their opposition, the plaintiffs argue that the
defendants have not notified the plaintiffs of any post-
deprivation procedures to get their tent back. The Fifth
Amendment does not require the defendants to notify the
plaintiffs of these procedures. See City of W. Covina v.
Perkins, 525 U.S. 234, 241 (1999) (explaining that the Due
Process Clause does not require “individualized notice of state-
law remedies which . . . are established by published, generally
available state statutes”).
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(1) an agreement between two or more persons; (2) to
commit an unlawful action, or to commit a lawful act by
unlawful means; (3) an injury caused by an unlawful
overt act performed by one of the parties to the
agreement; and (4) the overt act was done pursuant to a
common scheme.
Bush v. Butler, 521 F. Supp. 2d 63, 68 (D.D.C. 2007) (citing
Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)). To
recover under 42 U.S.C. § 1983, plaintiffs must additionally show
“that the purpose of the alleged conspiracy was to deprive the
plaintiffs of their constitutional rights.” Parker v. Grand
Hyatt Hotel, 124 F. Supp. 2d 79, 88 (D.D.C. 2000).
The defendants argue that the plaintiffs have not stated a
§ 1983 civil conspiracy claim, in part, because the plaintiffs
have not alleged sufficient facts to show that the defendants
agreed to take part in unlawful conduct. Defs.’ Mem. at 24-25.
In their opposition, the plaintiffs did not respond to this
argument. Thus, the defendants’ argument will be deemed
conceded. See Iweala v. Operational Tech. Servs., Inc., 634 F.
Supp. 2d 73, 80 (D.D.C. 2009) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a motion to
dismiss addressing only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.” (internal quotation marks
omitted)). Accordingly, the defendants’ motion to dismiss the
plaintiffs’ civil conspiracy claim will be granted.
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IV. COMMON LAW CLAIMS
A. False arrest and false imprisonment
“The focal point of [a false arrest or false imprisonment]
action is the question whether the arresting officer was
justified in ordering the arrest of the plaintiff; if so, the
conduct of the arresting officer is privileged and the action
fails.” Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977).
Justification can be established by showing that there
was probable cause for arrest of the plaintiff on the
grounds charged. A lesser showing can also be made,
namely that the arresting officer had reasonable
grounds to believe a crime had been committed and that
plaintiff's arrest was made for the purpose of securing
the administration of the law (i.e., that the officer
acted in good faith).
Id. (citations omitted); see also Reiver, 925 F. Supp. 2d at 7
(“To succeed under a claim for common law [false arrest or] false
imprisonment, a plaintiff must demonstrate that the police acted
without probable cause, in an objective constitutional sense, to
effectuate his arrest.” (internal quotation marks omitted)). As
is discussed above, it was reasonable for the individual
defendants to believe that there was probable cause to arrest the
plaintiffs. Thus, the plaintiffs’ false arrest and false
imprisonment claims will be dismissed.
B. Conversion
The plaintiffs allege that the defendants “dispossessed” the
plaintiffs of their tent or “disposed” of their tent and
“wrongfully destroyed” their tent. 2d Am. Compl. ¶ 41. Under
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D.C. law, conversion is “an unlawful exercise of ownership,
dominion and control over the personalty of another in denial or
repudiation of his right to such property.” Blanken v. Harris,
Upham & Co., Inc., 359 A.2d 281, 283 (D.C. 1976). Thus, “[a]
defendant will be liable for conversion if the plaintiff shows
that the defendant participated in (1) an unlawful exercise,
(2) of ownership, dominion, or control, (3) over the personal
property of another, (4) in denial or repudiation of that
person’s rights thereto.” Gov’t of Rwanda v. Rwanda Working
Grp., 227 F. Supp. 2d 45, 62 (D.D.C. 2002). The defendants argue
that the plaintiffs have not pled facts sufficient to show that
the defendants unlawfully exercised ownership of the plaintiffs’
tent.8
In their second amended complaint, the plaintiffs allege
that they were unlawfully arrested by the individual defendants,
see 2d Am. Compl. ¶ 28, that the plaintiffs were in rightful
possession of the tent, id. ¶ 42, and that after they were
arrested, the individual defendants took and destroyed the tent,
id. ¶ 27. Thus, the plaintiffs have sufficiently stated a claim
of conversion by alleging that their arrest was improper and thus
8
In their opposition, the plaintiffs do not directly
address the defendants’ legal arguments. However, contrary to
the defendants’ assertion in their reply, see Defs.’ Reply at 25
n.18, the plaintiffs did not concede the defendants’ arguments.
Instead, the plaintiffs argue that they should “succeed on their
common law claims” because they “established that their rights
were violated under § 1983.” Pls.’ Opp’n at 31.
- 22 -
the subsequent taking and dominion over their tent was unlawful.
Accordingly, the defendants’ motion to dismiss this claim will be
denied.9
CONCLUSION
The individual defendants are entitled to qualified immunity
from the plaintiffs’ First and Fourth Amendment claims. The
plaintiffs did not state a claim for violation of the Fifth
Amendment, civil conspiracy, and false arrest and false
imprisonment. The plaintiffs have stated a claim for conversion.
However, at the plaintiffs’ request, their conversion claim will
be dismissed without prejudice. A separate Order accompanies
this Memorandum Opinion.
SIGNED this 19th day of September, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge
9
However, in their opposition, the plaintiffs request that
“[i]f the Court dismisses Plaintiffs’ § 1983 claims, [their
conversion claim] be dismissed without prejudice to re-file in
Superior Court.” Pls.’ Opp’n at 31. Accordingly, the conversion
claim will be dismissed without prejudice.