Judges Memorandum 4/12/95

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

MEMORANDUM OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE

INTRODUCTION

Before the Court is the Defendants' Motion to Dismiss All Claims Against Defendants Richard Robbins, Stephen O'Neill, and Andrew Keness, filed on January 11, 1995. The Defendants argue in their Motion that the Court should dismiss the above Defendants from this suit because the Defendants are entitled to qualified immunity and because the Plaintiffs have failed to meet the heightened pleading standard applicable to their suit.

Upon consideration of the Plaintiffs' Amended Complaint, the filings by both parties, and the applicable law, the Court finds that the suit for damages against Defendants "X" and Robbins must be dismissed because the Plaintiffs have failed to plead their cause of action with sufficient specificity. In addition, the Court finds that Defendants O'Neill and Keness have qualified


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immunity from suit for damaqes reqarding four of the Plaintiffs' fivg factual allegations of unconstitutional conduct. However, the Court finds that the Defendants' invocation of qualified immunity and the heightened pleading standard applies only to the Plaintiffs' prayer for damages, and does not effect the Plaintiffs' request for declaratory and injunctive relief.

BACKGROUND

On January 6, 1995, the Plaintiffs, perennial anti-nuclear weapons demonstrators who frequent the Lafayette Park ("Park") located on Pennsylvania Avenue across from the White House, filed an Amended Complaint seeking declaratory and injunctive relief, and "nominal monetary damages." Amended Complaint, p. 9-10. In the Amended Complaint, the Plaintiffs allege that three Park Police Officers harassed and intimidated the Plaintiffs without probable cause in violation of the Plaintiffs' First, Fifth, and Fourteenth Amendment rights. The Plaintiffs also assert that 36 C.F.R. 7.96 et sea., which in part bans "camping" and the erection of "structures" in Lafayette Park, is unconstitutionally vague, subject to arbitrary enforcement, and threatens to chill the Plaintiffs' speech in violation of the First Amendment. The Plaintiffs therefore seek an Order from this Court enjoining the Defendant Park Police from "arbitrarily enforcing or threatening to enforce" provisions of 36 C.F.R. 7.96 et seq. Amended Complaint, p. 2. In addition, the Plaintiffs seek an Order enjoining the


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Defendant Park Service from assigning Officers Stephen O'Neill, Andrew Keness, and "X"[1] to duty in the Park, and any other such relief that the Court may find appropriate.

The Plaintiffs' suit arises out of allegations that the abovenamed Officers harassed the Plaintiffs "under color of various CFR and D.C. regulations," and threatened to arrest the Plaintiffs if they failed to remove signs, flags, and a plastic cooler from their demonstration sight in Lafayette Park. Amended Complaint, p. 3. First, the Plaintiffs allege that Officer O'Neill falsely arrested Plaintiff William Thomas for disorderly conduct, which deprived the Plaintiff of his First Amendment rights. Second, the Plaintiffs argue that Officers O'Neill and Keness informed Plaintiff William Thomas that a sign the Plaintiff erected in the Park qualified as a "structure" banned under 36 C.F.R. S 7.96(g)(5)(x)(A)(4) , and that the Plaintiff was therefore subject to arrest and the sign subject to confiscation unless the Plaintiff removed it. Third, the Plaintiffs argue that Officers O'Neill and Keness pressured Plaintiffs William Thomas and Concepcion Picciotto to remove two flags from the Park "under color of a CFR regulation." Amended Complaint, p. 4. The Plaintiffs assert that the Officers pressured the Plaintiffs despite the Plaintiffs' alleged exemption from the applicable CFR regulations and the Plaintiffs' possession of valid


[1 The Plaintiffs identify Officer "X" as the officer who shot Marcelino Corneil on the White House sidewalk on December 20, 1994 after Mr. Corneil threatened Officer O'Neill with a large knife. Amended Complaint, p. 5. The Court accepts the allegations in the Plaintiffs' Complaint as true for purposes of its decision. See Bois v. Marsh, 801 F.2d 462, 464 (D.C. Cir. 1986).]


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permits for the flags. Fourth, the Plaintiffs claim that Officers O'Neill and Keness threatened to charge Plaintiff Concepcion Picciotto with a CFR violation unless she removed a plastic cooler from the Park. Finally, the Plaintiffs allege that Officers O'Neill and Keness often threatened to arrest the Plaintiffs for unlawfully camping in the Park. The Officers also allegedly kicked the Plaintiffs, prodded them with nightsticks, and banged on the Plaintiffs' signs.

Based upon these allegations, the Plaintiffs argued that the Court should issue a temporary restraining order ("TRO") to prevent the Officers from violating the Plaintiffs' various constitutional rights. On January 9, 1995, the Court denied the Plaintiffs' Motion for a Temporary Restraining Order following a hearing concerning the matter. The Court found that the Plaintiffs did not meet the requirements for a TRO set forth in Washinston Metropolitan Area Transit Commission v. Holiday Tours. Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Specifically, the Plaintiff had not shown: (1) a likelihood of success on the merits; (2) a threat of immediate and irreparable harm; (3) that the issuance of an injunction would not harm the other parties; and (4) that the issuance of the injunction would not be adverse to the public interest. Order, Jan. 9, 1995, p. 3.

On January 11, 1995, the Defendants filed a Motion to Dismiss on the grounds that the Plaintiffs failed to state a claim with the specificity required for Bivens-type claims, and because the Defendants are allegedly entitled to qualified immunity from civil


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suits. The Court is in receipt of all relevant filings relating to the Defendants' Motion, and these issues are ripe for decision.

DISCUSSION

I. THE DEFENDANTS' CLAIM THAT THEY ARE ENTITLED TO
QUALIFIED IMMUNITY, AND THAT THE PLAINTIFFS HAVE FAILED
TO MEET THE HEIGHTENED PLEADING STANDARD APPLICABLE TO
THIS ACTION APPLIES ONLY TO THE PLAINTIFFS' CLAIMS FOR
DAMAGES AND NOT TO THE PLAINTIFFS' CLAIMS FOR DECLARATORY
AND INJUNCTIVE RELIEF.

The Defendants argue that the Court must dismiss all of the Plaintiffs' claims against Defendants Richard Robbins, Stephen O'Neill, and Andrew Keness because the Defendants are entitled to qualified immunity, and because the Plaintiffs have failed to meet the heightened pleading standard with regard to these Defendants. Before the Court considers the merits of these arguments, the Court must make clear that the arguments apply only to the Plaintiffs' claims for civil damages and do not affect the Plaintiffs' claims for declaratory or injunctive relief.

Qualified immunity is limited in scope to civil suit damages and is inapplicable to claims for declaratory and injunctive relief. Harlow v. FitzqeraId, 457 U.S. 800, 819 n.34 (1982) (qualified immunity applies "only to suits for civil damases") (emphasis in original); Walker v. Jones, 733 F.2d 923, 933 n.15 (D.C. Cir.) (qualified immunity not a bar to claims for injunctive relief), cert. denied, 469 U.S. 1036 (1984); Charles v. Kelly, 790 F. Supp. 344, 349 (D.D.C. 1992) (same). Similarly, the heightened


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pleading standard that allegedly governs this suit applies only to the Plaintiffs' claims for damages. See Smith v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985),

Thus, the Court finds that the Defendants' assertion in their Motion that all claims against the three individual Defendants must be dismissed if the Defendants prevail upon the arguments raised in their Motion is incorrect. If the Court finds the Defendants' positions persuasive, the Defendants Richard Robbins, Stephen O'Neill, and Andrew Keness will be relieved from liability for damages, but cannot be dismissed as Defendants with respect to the Plaintiffs' claims for declaratory and injunctive action by this Court.

II. BECAUSE THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM
AGAINST DEFENDANT "X" AND DEFENDANT ROBBINS WITH THE
SPECIFICITY REOUIRED BY LAW, ANY DAMAGE CLAIMS AGAINST
THOSE DEFENDANTS MUST BE DISMISSED.

This Circuit holds complaints alleging claims for damages based on constitutional torts to a heightened standard of specificity. Hobson, 737 F.2d at 29-31. Allegations that a defendant committed an unconstitutional tort need not be extensive, but they must be ~sufficiently precise to put defendants on notice of the nature of the claim." Id. at 29. Courts must dismiss vague, conclusory, or general allegations as a matter of law. Id. at 30-31. The policies underlying the heightened pleading standard are most compelling in cases where, as here, the


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claim is brought against public officials. Martin v. Malhovt, 830 F.2d 237, 257 (D.C. Cir. 1987); Thomas v. United States, 696 F. Supp. 702, 704 (D.D.C. 1988).

A. The Plaintiffs have failed to state a cause of
action against Defendant "X".

In the present action, the Plaintiffs allege, inter alia, that an unidentified Officer "X" in some way violated the Plaintiffs' constitutional rights. The Court finds, however, that the Plaintiffs have failed to specify in any way how Defendant "X" committed wrongdoing.

The Plaintiffs' only allegation in this regard is that Defendant "X" "shot Marcelino Corniel on the White House sidewalk, December 20, 1994." Amended Complaint, p. 2. The Court notes, however, that Mr. Corniel is not a party to the present suit. The complaint only names William Thomas, Ellen Thomas, and Concepcion Picciotto as Plaintiffs in the present case. Even assuming arguendo that the Plaintiffs have standing to assert claims on behalf of Mr. Corneil, the Plaintiffs have not indicated how Defendant "X" violated Mr. Corniel's constitutional rights by shooting him. Indeed, the Plaintiffs concede in their Complaint that Mr. Corniel "threatened Officer O'Neill with a large knife" and that Officer O'Neill then called for backup officers including Defendant "X". Amended Complaint, p. 5. These facts, however, may suggest that Officer "X" acted with probable cause in responding to Mr. Corneil, see Tennessee v. Crarner, 471 U.S. 1, 11 (1985)


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(holding that it is reasonable for an officer to use deadly force when he or she "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others"), but in any event do not substantiate the Plaintiffs' assertion that Defendant "X" violated Mr. Corneil's constitutional rights.

The Plaintiffs' failure to substantiate their claim that Mr. Corneil's constitutional rights were abridged by Officer "X" precludes this Court from considering claims against this Defendant. Hobson, 737 F.2d at 31. The Court therefore finds that the Plaintiffs have failed to meet the heightened pleading standard for their Bivens claim against Defendant "X~', and the suit for damages against Defendant "X" must therefore be dismissed. In addition, because Defendant "X" is not a party to the present suit, and because the Plaintiffs have failed to assert a legal basis for presenting claims on Mr. Corneil's behalf, the Court finds that any other claims against Defendant "X" must also be dismissed.

B. The Plaintiffs have failed to state a cause of
action for damaqes against Defendant Richard
Robbins.

The Plaintiffs also claim that Defendant Richard Robbins committed supervisory negligence [2] by failing to "properly oversee


[2 The Defendants argue that the Plaintiffs actually seek to hold Defendant Robbins liable based upon the theory of respondeat superior -- a theory of liability which is not cognizable in this Circuit. See Haynesworth v. Miller, 820 F.2d 1245, 1259 (D.C. Cir. 1987). The Court finds, however, that the Defendants have...cont.]


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a well-armed police force, although [he] knew, or should have known, of extra-legal conflicts by Chis] subordinates toward demonstrators and others in the Park." Amended Complaint, p. 7.

To prevail upon a claim of supervisory negligence, the Plaintiffs must ultimately show that the Defendant was responsible for supervising the wrongdoer; that a duty to instruct the subordinate to prevent a substantial threat of constitutional harm arose from the surrounding circumstances; and that, as a result of the official's gross negligence in failing to instruct the subordinate emp loyees , the Plaintiff was harmed in the manner alleged. Havnesworth v. Miller, 820 F.2d 1245, 1259 (D.C. Cir. 1987).

After considering in detail the Plaintiffs' Amended Complaint, the Court finds that the Plaintiffs have failed to state with sufficient specificity a cause of action for damages against Defendant Robbins. First, the Plaintiffs have failed to indicate with sufficient specificity to what extent Defendant Robbins was


[Cont... inaccurately characterized the Plaintiffs' claim. As this Circuit noted in Havnesworth, the theory of respondeat superior applies where a plaintiff seeks to hold an official liable simply "by virtue of (his or her] dominant role in the employment relationship." Id. at 1259. In contrast, a claim of supervisory negligence alleges specific negligent acts by the supervisory emp loyee, such as a failure to properly oversee or train his subordinates. Id.

The Plaintiffs do not allege that Defendant Richard Robbins is vicariously liable simply because he is employed in a superior position to the Officers who allegedly violated the Plaintiffs' First Amendment rights. Rather, the Plaintiffs assert that the Defendant "failed to properly oversee" the Officers and that he should have known that allegedly unlawful acts were committed by the Officers. In view of the Plaintiffs' allegations, the Court finds that the Plaintiffs claim is more accurately characterized as a claim of supervisory negligence than one of respondeat superior.


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responsible for supervising the alleged wrongdoers. The Plaintiffs only statement in this regard is that "Robbins is an Assistant Solicitor with the Department of Fish and Wildlife , . . [whose~official duties [include] advis[ingl the Park Police on the enforcement of regulations in 36 C.F.R. [~] 7 et ses.~ Amended Complaint, p. 2. The Complaint does not charge that Robbins was responsible for training or overseeing Officers O'Neill and Keness.

Second, the Plaintiffs have failed to plead with specificity how Defendant Robbins acted with gross negligence. Havnesworth, 820 F.2d at 1260; accord Havs v. Jefferson County, 668 F.2d 869, 872 (5th Cir.), cert. denied, 459 U.S, 833 (1982). [3] The Plaintiffs have not specified in any way how Defendant Robbins' alleged "failure to oversee" the Park Police Officers led to a high likelihood of constitutional deprivation. The Court therefore holds that the cause of action for damages against Defendant Richard Robbins must be dismissed for failure to state a claim. The brief, cryptic description of Defendant Robbins' alleged wrongdoing hardly suffices to surpass Hobson's heightened pleading standard for claims of this type.


[3 In Havnesworth, the court found that holding supervisory officials liable for negligence that leads to foreseeable constitutional violations by subordinate employees would place "an excessive burden on supervisors and hamper performance of official duties." Haynesworth, 820 F.2d at 1261. Thus, plaintiffs must assert more than mere negligence by the defendant. Plaintiffs must show that the defendant was grossly negligent, e.q., that he created a high likelihood of harm. Id.]