MCCAIN v. DISTRICT OF COLUMBIA et al, No. 1:2013cv01589 - Document 16 (D.D.C. 2014)

Court Description: MEMORANDUM AND OPINION granting in part and denying in part [Dkt. No. 4] Motion to Dismiss. Signed by Judge Gladys Kessler on 10-06-2014. (lcgk3, )

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MCCAIN v. DISTRICT OF COLUMBIA et al Doc. 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KIMBERLY MCCAIN, Plaintiff, Civil Action No. 13-1589 (GK) v. DISTRICT OF COLUMBIA, et al., Defendants. MEMORANDUM OPINION Plaintiff Kimberly McCain this action against the ("Plaintiff" or "McCain") District of and Metropolitan Police Department ("Officer King") (collectively, and negligent supervision, distress, and violations ("MPD") Richard "Defendants") for Columbia ("Officer negligence, of her District") Officers Kelvin King Moats intentional ("the brings gross infliction constitutional Moats") negligence, of emotional rights pursuant to 42 U.S.C. § 1983. This matter Dismiss [Dkt. is before 4]. No. the Court Upon Plaintiff's Opposition [Dkt. No. 8] ' Plaintiff's Defendants' Supplemental Response to the on Defendants' consideration 7], of Defendants' Opposition Supplemental Motion the Motion, Reply [Dkt. No. [Dkt. No. Opposition 10] ' [ Dkt. 11], Defendants' Notice to the Court dated August 14, 2014 No. 14], and the entire record herein, and to for the No. [Dkt. reasons Dockets.Justia.com stated below, Defendants' Motion shall be granted in part and denied in part. I. BACKGROUND Factual Background1 A. On July 12, 2009, Plaintiff was arrested in the District of Amended Complaint Compl. ") for ｾ＠ After failing a series of field sobriety tests, she was 8-9. 2 drunk driving. ("Am. Columbia taken to "a police substation" where she was twice administered a breath alcohol 5000EN test using a ("Intoxilyzer"). machine Id. ｾ＠ known as 8-10. Plaintiff's Intoxilyzer tests were 0.34 liters breath, indicating of respectively, an The Intoxilyzer results of and 0.37 grams per 210 that her breath 1 The facts are taken from the Amended Complaint [Dkt. No. 1-2], documents incorporated by reference in the Amended Complaint, and facts of which the Court may take judicial notice. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) ("In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.") ( citation omitted) . · In particular, the Court takes judicial notice of the docket in Plaintiff's criminal case, District of Columbia v. McCain, No. 2009 CTF 016013 (D.C. Super. Ct. July 23, 2009) ("McCain Crim. Dkt."). See Rogers v. District of Columbia, 880 F. Supp. 2d 163, 166 (D. D.C. 2012) (" [D]ocket sheets are public records of which the Court can take judicial notice[.]") (citing Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). A copy of the McCain criminal docket is attached as Exhibit 1 to Defendants' August 14, 2014, Notice [Dkt. No. 14]. 2 The Amended Complaint erroneously states that Plaintiff was arrested on December 7, 2008, but the parties agree that she was actually arrested on July 12, 2009. See Pl.'s Opp'n at 1. -2- alcohol level was more than four times the legal limit. The offenses: of D.C. charged District ( 1) Driving While Code § in violation 2201.05 (b) (1) (A) (i) (II); ( "OWI") , Am. and in violation of D.C. Compl. 16; <JI Intoxicated see (2) Driving Under the Operating ( 3) Code § in violation D.C. of 50- Code While Impaired 50-2201. 05 (b) ( 2) (A) . also McCain Crim. <JI criminal three ( "DWI") , 50-2201.05(b) (1) (A) (i) (I); ("DUI"), Influence with Plaintiff Id. Dkt. at entries See dated July 23, 2009. Under the Plaintiff's impaired driving arrest, the DUI prosecution to prove that, she was "less able, exercise [operate the a vehicle] Karamychev v. 2001) clear 3 D.C. driving driving liters (2009). and as a judgment with and safety omitted); by contrast, OWI charges the time required of the result of alcohol consumption, to District of Columbia, (citation in effect at either mentally or physically or both, 2201.05 (b) (1) (A) (i) (II); charge, laws see steady hand [her] self necessary or 772 A.2d 806, also 50-2201.05 (b) (2) D.C. the (2009). to public." 812-13 Code to (D.C. §§ 50- The DWI required the prosecution to prove only that Code § 50-2201.05, which was the operative impaired provision at the time of Plaintiff's arrest, prohibited with an alcohol level at or exceeding .08 grams per 210 of breath. See D.C. Code § 50-2201.05(b) (1) (A) (i) (I) -3- Plaintiff's alcohol levels exceeded .08 grams per 210 liters of breath. See id. § 50-2201.05 (b) (1) (A) (i) (I). Plaintiff was advised by her attorney that her Intoxilyzer results could consequently, charge. be successfully on October 1, 2009, challenged in 1, mandatory treatment On October 8, 2009. days program, in a jail, $400 in fees court, 2009, she was sentenced to 28-day and Dkt. at entries residential fines, and alcohol one year Id. 1 18; see also McCain Crim. supervised probation. and, she pled guilty to the DWI Am. Compl. 1 17; see also McCain Crim. dated Oct. ten not of Dkt. at entry dated Oct. 8, 2009. 4 On July satisfying all 26, of 2010, the after terms and serving her conditions jail of time her and sentence, Plaintiff received a notice from the District of Columbia Office of the Attorney General ("OAG notice") advising her Intoxilyzer machine used to test her breath alcohol that the levels on July 12, 2009, had not been properly maintained and calibrated. In particular, the OAG notice appears to Am. Compl. 11 19, 23. have alerted Plaintiff, Defendant Officer King, Intoxilyzer used machines "out-dated, as she alleges in this case, that who was responsible for maintaining the for the Metropolitan deteriorated, 4 and Police uncertified Department, simulator As a result of her conviction, Plaintiff was also terminated from her employment as an Emergency Technician with the District of Columbia. Am. Compl. 1 22. -4- solutions" to machines calibrate every the three machines months, in Id. manufacturer's specifications. and failed to with accordance 38-41. <][<][ test the the Plaintiff alleges that the "forensically invalid and unscientific procedures" used by Officer King to calibrate and maintain the machines "resulted in inaccurate, readings, forensically which rendered inaccurate." Id. invalid [her] Intoxilyzer 40, 45. <][<][ she claims years to issuance prior inflated breath test results invalid and In addition, two and that the District of the OAG knew, notice, at least that its Intoxilyzer machines were not properly maintained but failed to "take any corrective action" until February 26, 2010, when it "began advising judges that MPD lacked confidence in its breath test results." On Id. December <][<][ 6, 52, 53, 56. 2013, Plaintiff filed a motion in the Superior Court to withdraw her guilty plea and set aside the DWI conviction. See McCain Crim. Dkt. at entry dated Dec. 6, 2013. On February 21, 2014, the Superior Court granted that motion and reinstated all of the original criminal charges, DUI and OWI charges. See Pl.'s Supp. Opp'n, Order dated Feb. 21, 2014) [Dkt. No. 10]. reinstated criminal proceeded Magistrate Judge entries dated case Rainey June 24, Brandt. 2014. -5- to See On including the Ex. 1 ·(Sup. Ct. On June 24, 2014, the a bench McCain July 24, trial Crim. 2014, before Dkt. at at the conclusion of that trial, the DWI and OWI charges were dismissed by the prosequi prosecution nolle and Magistrate Judge Brandt found Plaintiff guilty on the sole remaining charge of DUI. See McCain Crim. Dkt. at entries dated July 24, 2014. B. Procedural Background On July 24, 2013, exactly one year before the conclusion of Plaintiff's reinstated criminal case, action in the Superior Court of the October [Dkt. 17, No. 2013, 1] and on October Motion to Dismiss filed Defendants [Dkt. No. her Opposition [Dkt. filed this civil District of Columbia. removed 24, she the 2013, case they to filed this the On Court instant 4]. On November 14, 2013, Plaintiff No. 7], 5 and on November 25, 2013, Defendants filed their Reply [Dkt. No. 8]. Thereafter, on February 2 4, 2014, Plaintiff filed a Supplemental Opposition with information as to the status of her motion to withdraw her guilty plea in the Superior Court No. 10 at 1-5]. to Plaintiff's same day, [Dkt. On March 6, 2014, the District filed a Response Supplemental Plaintiff filed Opposition a Reply 5 to [Dkt. the No. 11] District's and, the Response On December 4, 2013, Plaintiff also filed a Request for Oral Argument [Dkt. No. 9], on the asserted basis that Defendants' Reply brief "raised matters unaddressed" in her initial Opposition. Because Plaintiff was subsequently permitted to file both a Supplemental Opposition [Dkt. No. 10] and a Reply to the District's Response to her Supplemental Opposition [Dkt. No. 12] , and because the Court concludes that resolution of the instant Motion is appropriate without oral argument, Plaintiff's Request is denied. -6- [Dkt. No. regarding 12]. the On August 14, final 2014, disposition Defendants filed a Notice of Plaintiff's criminal case [Dkt. No. 14 at 2]. II. STANDARD OF REVIEW To survive plaintiff need a motion only to plead dismiss "enough facts relief that is plausible on its face" her] claims across Bell Atlantic the Corp. line v. from Twombly, under to Rule 12(b) (6), state a claim and to "nudge [] conceivable 550 U.S. "[O]nce a claim has been stated adequately, to 544, a to [his or plausible." 570 (2007). it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success . . . the complaint are true [,] must assume all the allegations in [, (even if doubtful in fact) and] must give the plaintiff the benefit of all reasonable inferences derived 2001 from v. Fame the facts Jeans alleged." Inc., 525 Aktieselskabet F.3d 8, 17 (D.C. (internal quotation marks and citations omitted) . will not suffice, devoid of 556 U.S. 'further 662, 678 however, if it "tenders factual (quoting (alteration in Iqbal) . -7- 21. Nov. Cir. 2008) A complaint 'naked assertion [ s] ' enhancement.'" (2009) AF Twombly, Ashcroft 550 U.S. v. Iqbal, at 557) III. ANALYSIS Defendants seek dismissal of Plaintiff's Amended Complaint on three they argue that her claims are Second, they contend that Counts I-III, each of which untimely. assert First, grounds. common law tort claims, must be dismissed because Plaintiff failed to comply with the District's mandatory notice statute, which D.C. Code asserts a § Third, 12-309. cause of constitutes a collateral conviction and, therefore, action attack is they argue that Count IV, under U.S.C. Plaintiff's on barred 42 by the § 1983, criminal Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994). A. Counts I-III Shall Be Dismissed for Failure to Satisfy D.C. Code § 12-309 The parties agree that Plaintiff's common law tort claims in Counts . I-III 6 are subject to D.C. Code § 12-309, which provides: An action may not be maintained against the District. of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in the regular course of duty, is a sufficient notice under this section. 6 Count I is a claim for negligence and gross negligence against all Defendants. Am. Compl. «JJ«JJ 62-73. Count II is a claim for negligent supervision against the District. Id. «JJ«JJ 7 4-8 0. Count III is a claim for intentional infliction of emotional distress against Officer King and Officer Moats. Id. «JJ«JJ 81-84. -8- D.C. Code The § notice 12-309. requirements important purposes: they in Section 12-309 "serve several (1) permit the District of Columbia to conduct an early investigation into the facts and circumstances surrounding a claim, (2) protect the District of Columbia against unreasonable claims, and (3) encourage prompt settlement of meritorious claims." Owens v. 1085, (citations 1088 Appeals held for that (D.C. the 2010) Dist. of Columbia, District of Columbia has compliance with The omitted). S ¬ction therefore 12-309 is 993 A. 2d Court of repeatBdly a mandatory "condition precedent to filing suit against the District[,]" and "is to be construed narrowly against claimants." Id. (citations and quotation marks omitted) . 7 Plaintiff concedes that she never filed a writtBn notice of h ¬r claims with th ¬ Mayor of the District of Columbia. Opp' n at 7-8. She relies instead on Section 12-309, which states that "[a] Metropolitan Police Department, the final Pl.'s sentence of rBport in writing by the in the regular course of duty, is a sufficient notice under this section." D.C. Cod ¬ § 12-309. She points to two types of MPD "reports" she contends provided notice of her claims: ( 1) the 7 police reports preparBd in Section 12-309 does not, however, apply to claims under 42 U.S.C. § 1983. See Brown v. United States, 742 F.2d 1498, 150910 (D.C. Cir. 1984) (en bane), cert. denied, 471 U.S. 1073 (1985). -9- connection with her July ( 2) reports 2009, arrest for drunk driving, and ＱＲｾ＠ allegedly prepared by MPD investigation into the Intoxilyzer in connection with problems in its Pl.'s 2010. Opp'n at 7. It is well-established that the mere "existence of a police report 'does not necessarily mean that the District has received the actual notice which Martin v. District of Columbia, 12-309 § 720 F. Supp. contemplates.'" 2d 19, 25 (D.D.C. 2010) (citing Allen v. District of Columbia, 533 A.2d 1259, 1262 (D.C. 1987)). This is especially true plaintiff's civil case asserts claims malicious prosecution. See Allen, where, such as as false 533 A. 2d at here, a arrest or 1263 (holding that "a police report of an arrest is presumptively devoid of any notice of a potential claim of injury or damage from false arrest . or negligence"). A police report will satisfy Section 12-309 only if, among other things, ! of the it actually "'disclose [s] [plaintiff's] injury and a both the factual cause reasonable anticipating legal action as a consequence.'" of Columbia, 879 F. Supp. 2d 69, 77 basis for Jones v. District (D.D.C. 2012) (quoting Washington v. District of Columbia, 429 A.2d 1362, 1366 (1981)). In addition, the report must contain "enough information for the District to conduct a prompt, [the plaintiff's] claim." properly focused investigation of Id. at 78. -10- Plaintiff has not attached to her pleadings the police report prepared in connection with her July 12, 2009, arrest for drunk driving. the documents Furthermore, incorporated provide any basis "factual neither the Amended Complaint nor cause" to of by conclude the reference that such injury asserted in that report in this Complaint disclosed the case i.e., Officer King's alleged defective calibration and maintenance of the Intoxilyzer machine used to test Plaintiff's alcohol levels. Therefore, the police report issued connection in with Plaintiff's arrest does not satisfy Section 12-309. Plaintiff has also failed to attach to her pleadings any reports into prepared by MPD the Intoxilyzer in connection problems. presented regarding MPD' s The with its only evidence investigation is a investigation which discuss the Intoxilyzer problems generally and refer to a [breath test] "for Supp. generally aware establish that "summary of problems" prepared by an unidentified author [certain MPD Opp'n Ex. has series of emails among MPD officials in February and March 2010, the she officials' ] 2. of MPD use in meetings [.]" Although these emails the or Intoxilyzer any of its See Pl.'s show that MPD was they probl ¬m, employees or do agents not ever prepared a report specifically identifying the facts giving rise to Plaintiff's Section 12-309. case. Therefore, they also fail Jones, 879 F. Supp. 2d at 77-78. -11- to satisfy Finally, Plaintiff argues that "information was sufficiently available to the District to allow [it] to identify the . . . tainted prosecutions." Pl.'s Opp'n at 7. But neither "sufficiently available" information nor "actual notice" define compliance with Section 12-309. District of Columbia has held, As the Court of Appeals for the "[f] ailure of a formal notice or a police report to meet the required specificity would bar the suit even if [information in the District's possession] actual1y prompted the city to District of Columbia, Washington v. 1981)); make an investigation." 568 A. 2d 107 6, District of Columbia, see also Owens, 107 9 (D.C. Campbell 1990) 429 A.2d 1362, 993 A.2d at 1089 (D.C. (citing 1367 2010) v. (D.C. ("Whether the District of Columbia had 'actual notice of a potential claim is not (citing an appropriate Chidel In sum, by a v. Hubbard, A.2d of MPD report requisite information, of 840 under 689, section 695 12-309.'") (D.C. 2004)) . 8 the law is clear: Section 12-309 is satisfied only specific type District consideration Columbia, - one "that covers easily found in one place." 379 A.2d 8 1177, 1178 all the Jenkins v. (D.C. 1977) . Enders v. District of Columbia, 4 A.3d 457, 467-68 (D.C. 2010), on which Plaintiff relies, is inapposite. The plaintiff in that case did not rely on a police report to provide the requisite notice but rather sent a timely notice to the District indicating his intent to file a false arrest claim. It is undisputed that Plaintiff never sent such a notice to the District. -12- Plaintiff has Consequently, not shown that such exists. report a she has not demonstrated compliance with Section 12-309 and her common law tort claims in Counts I-III must be dismissed. 9 B. In § 1983 Count IV Shall Not Be Dismissed Count IV, for Plaintiff brings violation her she alleges Specifically, of that a "[i] f claim under 42 rights. constitutional evidence certified Intoxilyzer had been utilized, from a [she] U.S.C. properly would not have been subject[ed] to and convicted of an offense with a mandatory jail term." Am. Compl. <JI 90. She contends that Defendants' use of the allegedly invalid test results to convict her of the DWI charge violated her rights under the Fifth, Fourteenth Amendments of the Constitution. Defendants tort claims agree in Counts that this I-III, claim, is requirements in Section 12-309. 10 is barred by the Supreme not Sixth, Id. <JI<JI Eighth, and 86-87. unlike the subject to common the law notice They contend, however, that it Court's 1994 decision in Heck v. 9 Having so concluded, the Court shall not address Defendants' alternative argument that Counts I-III are barred by the statute of limitations. 10 Defendants originally challenged this claim as untimely. However, they now concede that "Plaintiff's claim under § 1983 . . is not time-barred, as Plaintiff only recently was permitted to withdraw her guilty plea." Defs.' Resp. to Pl.'s Supp. Opp'n at 5. -13- Humphrey, which held that, allegedly "in order to recover damages for unconstitutional conviction or imprisonment, [an] or for other harm caused by actions whose unlawfulness would render a conviction that the or sentence conviction invalid, or a sentence § has 1983 plaintiff must been reversed on prove direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make question by the October federal time 2013, Defendants Plaintiff's vacated and therefore, exist in court's her favor. filed DWI the of a writ of habeas their Motion conviction to had Dismiss not yet in been a malicious prosecution claim did not yet However, conviction was vacated by the 2014, issuance or called into Heck, 512 U.S. at 486-87. 11 corpus[.]" At a such determination, on February Superior Court, District dismissed the the conclusion of the bench trial. DWI charge 21, 2014, her and on July 24, nolle Consequently, prosequi at the criminal charge on which Plaintiff was originally convicted has now been 11 There is a split of authority, and our Court of Appeals has not yet addressed, whether Heck applies to civil plaintiffs who are no longer in state custody and therefore do not have access to habeas corpus relief. See, e.g., Molina-Aviles v. District of Columbia, 797 F. Supp. 2d 1, 5 & n.5 (D.D.C. 2011) (noting circuit split and citing cases). It is unnecessary for ·the Court to take a position on this issue because, even assuming Heck applies to this case, as discussed below, it does not bar Plaintiff's claim at the pleading stage. -14- "declared invalid by a determination." Heck, 512 U.S. at 487. Defendants sufficient dropped argue under by the state tribunal authorized to make such that these Heck because circumstances although government, "the DWI Plaintiff are charge was not [was] subsequently convicted of DUI, an offense that arose from the same facts and circumstances as the original charge." 2. They fail, however, Defs.' Aug. 14 Notice at to cite any binding authority holding that conviction of a different offense after retrial necessarily precludes a Section 1983 plaintiff from showing that her earlier conviction has been "invalidated" within the meaning of Heck. As the Second Circuit recently observed: Heck does not automatically bar a § 1983 claim simply because the processes of the criminal justice system did not end up in the plaintiff's favor. A plaintiff need not prove that any conviction stemming from an incident with the police has been invalidated, only a conviction that could not be reconciled with the claims of his civil action. Poventud v. City of New York, (emphasis 689, 755, 692 in original) 750 F.3d 121, (quoting VanGilder 132 v. (2d Cir. 2014) Baker, 435 F.3d (7th Cir. 2006)); see also Jackson v. Barnes, 749 F. 3d 760 plaintiff's (9th § Cir. 2014) ("[U]nder 1983 claim is not certain circumstances Heck-barred despite a the existence of an outstanding criminal conviction against him."). Defendants concede that the DWI charge on which Plaintiff was originally convicted required proof of different -15- evidence See Mot. than the DUI charge on which she was later convicted. at ("Plaintiffs' 11 conviction or scores [.] ") OWI is Furthermore, rested added); see solely dependent the evidence id. which very Plaintiff reconciled with claims claim at to a breath 13 test ("[A] test DWI scores.") . now-vacated the DUI DWI "solely dependent" is the was Consequently, Plaintiff's on breath in Defendants' words, alleged misconduct. solely the on on opposed also conviction was, evidence as conviction, conviction, (emphasis conviction DWI tainted the DUI of by Defendants' conviction malicious can be prosecution regarding the DWI charge. In sum, the record is sufficient to raise a claim that Plaintiff's DWI charge was dismissed because the District lacked competent breath test evidence, and that such conviction has therefore been "invalidated" within the meaning of Heck. Molina-Aviles, claims of 797 F. plaintiffs Supp. who 2d at 7 had See (denying motion to dismiss withdrawn guilty pleas to DWI charges where such charges were awaiting retrial or subsequently dismissed) . 12 12 The cases cited by Defendants are either inapposite or support the Court's holding that Plaintiff has stated a claim under Heck. In Brandley v. Keeshan, 64 F. 3d 196 (5th Cir. 1995), abrogated on other grounds, Wallace v. Kato, 549 U.S. 384, 38792 (2007), the Court of Appeals for the Fifth Circuit held that a "reversal of a conviction and remand for new trial is not, in and of itself, a termination" sufficient to support a claim under Heck, but simultaneously acknowledged that "an order of -16- Defendants' motion to dismiss Count IV under Heck shall be denied. IV. CONCLUSION For the foregoing reasons, the District's Motion is granted as to Counts I, II, and II, and denied as to Count IV. An Order shall accompany this Memorandum Opinion. October 6, 2014 Gladys Kess er United States District Judge Copies to: attorneys on record via ECF dismissal reflecting an affirmative decision not to prosecute" a claim may suffice. Id. at 199. In Harris v. District of Columbia, 696 F. Supp. 2d 123 (D. D.C. 2010), this Court held that the plaintiff had not stated a common law claim for malicious prosecution because, although he alleged that his criminal charges had been dismissed, he failed to state any reason for such dismissal or show it was with prejudice. Id. at 133-34. By contrast, the dismissal in this case occurred after a bench trial, and the pleadings support the ｩｮｦ･ｾ｣＠ that such dismissal resulted from a lack of reliable breath test evidence. -17-

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