Untitled Document

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.
              Plaintiffs

         v.                   Civil Action No. 88-3130 JHG

RONALD REAGAN, et al. 
              Defendants

MOTION OF DISTRICT OF COLUMBIA TO DISMISS
AND/OR FOR SUMMARY JUDGMENT

The District of Columbia moves pursuant to Fed. R. Civ. P. 12(b)(6) and 56 to dismiss and/or for summary judgment and as cause therefor states as follows:

1. This suit, insofar as the involvement of the District of Columbia, involves the same incidents which were alleged in C.A. No. 84-3552, which was dismissed without prejudice by Judge Oberdorfer. Magistrate Burnette, in said other suit, had recommended that summary judgment be entered in favor of defendant Michael Canfield and the District of Columbia;

2. The only incidents referred to in the second amended complaint in the case at bar occurred in March of 1983 and so are barred by the Statute of Limitations, whether a one year or a three year period is imposed;

3. The evidence relating to the District of Columbia's involvement, as established in C.A. No. 84-3552, demonstrate that as a matter of law, no violation of plaintiffs' rights were committed by the District of Columbia;

4. There is no custom or policy alleged against the District of Columbia so as to create liability under 42 U.S.C. §1983.

WHEREFORE, defendant District of Columbia prays that this case be dismissed.

BY:

FREDERICK D. COOKE, JR.
Corporation Counsel, D.C.

MARTIN L. GROSSMAN
Deputy Corporation Counsel, D.C.

ARTHUR D. BURGER , [181933]
Assistant Corporation Counsel, D.C.
Attorney for Defendant
District Building, Room 314
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone No. 727-6303

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion of District of Columbia to Dismiss and/or for Summary Judgment, together with Memorandum of Points and Authorities in support thereof and order, was mailed, postage prepaid, to

Michael J. Martinez, Esquire,
Ass't U.S. Attorney, Room 4126,
Judiciary Center Building,
555 4th Street, N.W.,
Washington, D.C. 20001;

William Thomas,
1440 N Street, N.W., Apt. 410,
Washington, D.C. 20005,

and

Scott Galindez,
Mary Huddle, Philip Joseph
and Sunrise S. Harmony,
P.O. Box 27217,
Washington, D.C. 20038,

on this the 9th day of December, 1988.

//s// Arthur D. Burger
ARTHUR D. BURGER
Assistant Corporation Counsel, D.C.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.
              Plaintiffs

         v.                   Civil Action No. 88-3130 JHG

RONALD REAGAN, et al. 
              Defendants

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF
DISTRICT OF COLUMBIA TO DISMISS AND/OR FOR SUMMARY JUDGMENT

Introduction

The District of Columbia was not mentioned in the original complaint filed in this action. The Second Amended Complaint refers to the DistricL of Columbia and its employees only in paragraphs 9, 10, 11,, 14 and 16.

The allegations therein refer only to an incident with Captain Michael Canfield on March 11, 1983, and an incident with another MPD officer four days later, on March 15, 1983. As set forth further below these matters are clearly barred by the statute of limiations.

Plaintiffs' suit in C.A. No. 84-3552 included allegations of Captain Canfield's actions on March 11, 1983. Captain Canfield arrested William Thomas that day and Mr. Thomas was thereupon convicted after a jury trial in the Superior Court of the District of Columbia (F-14553-83) for destruction of property when the "structure" (an "A" frame shape with a display-type sign on the outside) was put on fire by Mr. Thomas resulting in damage to the White House fence.

In the course of the proceedings in C.A. No. 84-3552, Captain Canfield's Motion For Summary Judgment was referred to then Magistrate Burnette. The Magistrate personally presided over ten depositions and reviewed the parties' written submissions and heard oral argument on November 15, 1986. On December 15, 1986, Magistrate Burnette issued an 18 page Memorandum Opinion, Report and Recommendation in which he thoroughly considered all of the evidence presented regarding Captain Canfield's conduct toward William Thomas. He concluded that there were no facts upon which to support a cause of action against Captain Canfield and recommended that summary judgment be granted in favor of Captain Canfield. The Magistrate's Memorandum Opinion is attached hereto as Exhibit A and incorporated herein by reference. The entire complaint was subsequently dismissed without prejudice by Judge Oberdorfer and is now on appeal.

While it would appear that the dismissal without prejudice in C.A. No. 84-3552, would not result, by itself, in an absolute bar to a subsequent suit under the doctrine of res judicata, all the claims against the District of Columbia are clearly barred by the statute of limitations.

The District of Columbia additionally asserts that the evidence as presented in C.A.No. 84-3552, demonstrates on the merits that there are no facts upon which to assert a cause of action against the District of Columbia.

Finally, the District of Columbia contends that there is no cause of action stated against the District of Columbia under 42 U.S.C. §1983, since there is no evidence nor allegation of any custom or policy of the District of Columbia to warrant such a suit.

Argument

I. The Claims Against The District of Columbia Are Barred By The Statute Of Limitations.

The only incidents alleged against the District of Columbia were the alleged actions of Captain Canfield on March 11, 1983 and an alleged assault by Officer Minzak on March 15, 1983. (Second Amended Complaint pares. 14 and 16). These incidents both were more than 5 1/2 years after the date of the filing of the instant suit.

There has been a split of opinion among the U.S. District Court Judges in this Circuit as to whether a one year or a three year statute of limitations should apply to claims under 42 U.S.C. §1983, in view of the decision of the Supreme Court in Wilson v. Garcia, 471 U.S. 261 (1985). It has been the contention of the District of Columbia that the one year statute of limitations in D.C. Code §12-301 (1981 ed.), should apply to suits involving assault or false arrest. This position was adopted in Williams v. District of Columbia, 676 F.Supp. 329

(D.D.C. 1987) and Renay Hunter v. District of Columbia, C.A. No. 88-0718 (Slip opinion of Oct. 25, 1988 attached hereto as exhibit B). But cf. Hobson v. Brennan, 625 F.Supp. 459 (D.D.C. 1985) and Underwood v. District of Columbia Armonry Bd., 816 F.2d 769, 773 n.1 (D.C. Cir. 1987).

The applicability of the 3 year or 1 year statute of limitations need not be reached, however, since the alleged occurrences took place more than 5 years ago. They are therefore time barred.

Nor can plaintiff successfully contend that the claims were tolled during the pendency of C.A. No. 84-3552. This issue was directly addressed in Dupree v. Jefferson, 666 F.2d 606 (D.C. Cir. 1981). That was a suit procedurally similar to the situation at bar. Plaintiffs in Dupree contended that she was harassed by numerous encounters with members of the Metropolitan Police Department between 1972 and 1973. Her complaint was dismissed without prejudice for want of prosecution. A subsequent suit was thereupon filed and was dismissed as time barred under the statute of limitations. The court addressed the issue whether under District of Columbia law there should be a tolling of the statute of limitations during the pendency of the previous suit which was dismissed without prejudice. The court concluded:

"We therefore hold, as we believe the District of Columbia courts would hold, that under District of Columbia law the pendency of an action involuntarily dismissed without prejudice does not operate to toll the running of the statute of limitations." 666 F.2d at 611.

II. The Evidence Adduced In C.A. No. 84-3552 Demonstrate That the District of Columbia Is Entitled To Summary Judgment.

There was a thorough review in C.A. No. 84-3552 of all contact between Captain Michael Canfield and plaintiff William Thomas. It was limited to the events of March 8th through March 11, 1983.

Former Magistrate Arthur Burnette, as set forth in his previously referred to Memorandum Opinion attached hereto as Exhibit A, sets forth in detail the evidence presented concerning Captain Canfield's involvement. The Magistrate states that he personally presided over 10 depositions taken by plaintiff at which Mr. Thomas was given evry opportunity to develop an evidentiary record of any deprivaiton of constitutional rights by Captain Canfield.

The involvement of Captain Canfield centered around the existence of an "A" shaped structure of plywood and carboard constituting a display-type sign with sufficient inner space for a person to be inside and with a charcoal burner and other indicia of a temporary abode. Captain Canfield testified that it was approximately 10 feet long, 7 feet tall and 5 feet at the base. This was located on the sidewalk in front of the Executive Office Building which is District of Columbia property. (The sidewalk in front of the White House is federal property.)

Magistrate Burnette described in his Memorandum Opinion the restraint and caution exercised by Captain Canfield at all stages of his involvement over the 4 day period. Captain Canfield never

arrested Mr. Thomas until Mr. Thomas set the structure on fire, causing substantial damage to the White House fence. Mr. Thomas maintained that his action in setting the structure on fire was not willful but a jury convicted him on a felony charge of desctruction of property. F-1453-83. This was the only occasion in which captain Canfield arrested Mr. Thomas. Magistrate Burnette concluded:

"Under the totality of circumstances, defendant Canfield acted reasonably in first approaching the plaintiff and subsequently arresting him for arson following his conduct in 'torching' the structure. Thus, until the plaintiff committed a felony, the destruction of property by fire in the officer's presence, defendant's entire course of conduct towards the plaitniff is noteworthy in that he did not immeidately arrest the plaintiff on March 8, March 9, or on March 11, 1983, but provided him with a series of continued warnings until he set the structure on fire on March 11, 1983." (Memorandum Opinion p. 15).

The District of Columbia incorporates by reference the evidentiary record in C.A. No. 84-3552 to support its contention

"that even if the instant suit were not time barred, there is no evidence upon which to conclude that Captain Canfield acted improperly in handling Mr. Thomas or the "structure."

III. Plaintiffs Have Alleged No Unconstitutional Policy or Custom Against the District of Columbia.

The District of Columbia cannot be liable under 42 U.S.C. §1983 simply by respond eat superior. There must be shown a custom or official policy of the city in order for there to be

municipal liability. See Monell v. NYC Dept. of Social Services, 436 U.S. 658 (1978); City of St. Louis v. Praprotnik, 108 S.Ct. 914 (1988); and Oklahoma City v. Tuttle, 471 U.S. 808 (1985).

In this case there is no allegation nor any evidence of a custom or policy by the District of Columbia and so the District of Columbia is entitled to a dismissal.

Conclusion

Plaintiffs' claims are plainly barred by the statute of limitations. Further, the evidence brought forth in C.A. No. 84-3552 demonstrates that there was no violation of constitutional rights by Captain Canfield. Finally, there is no custom or policy alleged against the District of Columbia upon which to find liability under 42 U.S.C. §1983.

FREDERICK D. COOKE, JR.
Corporation Counsel, D.C.

MARTIN L. GROSSMAN
Deputy Corporation Counsel,
D.C. Civil Division

BY:

//s// arthur d. burger
ARTHUR. BURGER; [181933]
Assistant Corporation Counsel,
Attorney for Defendant
District Building, Room 314
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone No. 727-6303