Over the course of their vigil, which commenced in 1981,
plaintiffs and law enforcement officials have engaged in an ongoing
conflict arising from plaintiffs' exercise of their First Amendment
right. and defendants' enforcement of several Interior regulations
that establish the time, place, and manner of First Amendment
activity in Lafayette Park. 3/
3/ Although it is difficult to discern, plaintiffs appear
to challenge here the enactment and enforcement of several federal
regulations, in particular: (1) 36 C.F.R. § 7.96(g)(5)(vii)
which provides, "[t]emporary structures may not be used outside
designated camping are as for living accommodations activities
such as sleeping, or making preparations to sleep . . . , or storing
personal belongings, or making any fire, or doing any digging
or earth breaking or carrying on cooking activities;" (2)
36 C.F.R. 7.96(1) which defines "camping." and prohibits
camping outside "areas designated by the Superintendent,
who may establish limitations of time allowed for camping in any
public campground,. (3) 36 C.F.R. §§ 7.96(g)(5)(vii)(A), 7.96(g)(5)(viii),
and 7.96 (g) (5) (ix) which provide that structures and sign.
or placards are not permitted on the White House sidewalk, unless
they are of a certain size, shape, and material, and "[n]o
parcel, container, package, bundle or other property shall be
placed or stored on the White House sidewalk;" and 36 C.F.R.
§ 7.96(g)(5)(x)(B)(2) which provides, inter alia, "[s]igns
that are not being hand-carried and that are no larger than four
(4) feet in length, four (4) feet in width and one-quarter (1/4)
inch in thickness . . . may be used in Lafayette Park, provided
that no individual may have more than two (2) such signs in the
Park at any on. time, and provided further that such signs must
be attended at all times."
It is undisputed that plaintiffs have been repeatedly warned,
cited, arrested, tried, and sometimes convicted for violating
these regulations. 4/
The courthouse is not an unfamiliar edifice to any of the
plaintiffs. In addition to various criminal cases in which they
have appeared as defendants, many of these plaintiffs have been
involved in other civil litigation. In 1984, William Thomas, among
others, sued Interior officials, challenging the constitutionality
of several regulations that establish the time, place, and manner
of First Amendment activity near the White House in Lafayette
Park. 5/ Plaintiffs there also sought damages for injuries arising out of an alleged federal conspiracy to promulgate the Interior
regulations for the purpose of infringing upon plaintiffs' First
Amendment freedoms. After substantially narrowing the issues in,
the case, in June 1986, Judge Oberdorfer referred the remaining
claims to then- United States Magistrate Arthur Burnett, Sr. to
preside over limited discovery. After Magistrate Burnett
4/ "Plaintiffs' motion to strike federal defendants'
Exhibit 4 shall be granted Nevertheless, evidence of plaintiffs'
various conviction. is available in published opinions of this
5/ The regulations at issue in that case were 36 C.F.R.
§ 7.96(g)(5) and 7.96(i) (1987). See Thomas v. United
States, 696 F. Supp. 702, 704 (D.D.C. 1988) ("Thomas
personally presided over the depositions -- of ten government
officials, the federal defendants moved anew to dismiss the case
or, in the alternative, for summary Judgment.
In 1987, while the summary judgment motion was pending,
plaintiffs filed a second action against many of the same federal
defendants as well as the News World Communications, which was
conducting business as the Washington Times, the Reverend
Sun Myung Moon, and others associated with the newspaper and with
a political association known as Young Americans for Freedom.
On February 23, 1988, Judge Oberdorfer dismissed all claims against
the Times defendants and against all but three of the named nonfederal
defendants and held that plaintiffs had failed, as a matter of
law, to state a conspiracy claim. Thomas v. News World Communications.,
681-F.-Supp. 55, 66-72 (D.D.C. 1988) ("Thomas I").
The remainder of the cane was then consolidated with Thomas
II. Thomas 1, 681 F. Supp. at 74. On September 16,
1988, Judge Oberdorfer dismissed the entirety of the consolidated
cases, upholding the Interior regulations at issue and finding
that plaintiffs failed to state a cause of action for injuries
arising out of an alleged federal conspiracy to promulgate and
enforce the Interior regulations.
Judge Oberdorfer described plaintiffs, 1984 and 1987 claims
against the federal defendant. as follows:
[Plaintiffs' damage] claims center on a theory that the regulations
themselves, and the emergent pattern of their enforcement, reveal
a conspiracy among Department of the Interior and Park Police
to quell plaintiffs' twenty-four-hour First Amendment vigil in
Lafayette Park. The 1987 complaint enlarged the conspiracy theory
to embrace private defendants who allegedly contributed to the
plot by publishing unflattering criticism of plaintiffs' demonstration
and the content of their expression.
Thomas II, 696 F. Supp. at 704.
And with respect to plaintiffs' claims for injunctive and
declaratory relief, Judge Oberdorfer Summarized:
Plaintiffs claim that the regulation codified at 36 C.F.R.
§ 7.96(g)(5)(X)(B), which prohibits the placement of unattended
signs in Lafayette Park, place[es] arbitrary, capricious, and
unwarranted restrictions on those who "wish to demonstrate.
there. 1987 Complaint at ¶ 64. Plaintiffs imply that abusive and
selective enforcement of this regulation, i.e. at ¶ 65, has resulted
in an unconstitutional infringement of their First Amendment
rights, id. at ¶ 107. Similarly, plaintiffs cite numerous arrests
by Park Police officers for violations of the "camping"
and Storage of property. regulations, codified at 36 C.F.R. §
7.96(i), to support a general allegation that these regulations
are being enforced in a manner that violates the First-Amendment.
It is beyond question that all three regulation. constitute valid
time, place, and manner restrictions in the exercise of First
Amendment rights in Lafayette Park.
Thomas II, 696 F. Supp. at 705_---Plaintiffs subsequently
moved for reconsideration, which motion was denied on November
22, 1988. Meanwhile, on October 27, 1988, plaintiffs had initiated
the instant complaint and subsequently supplemented that complaint
with several amended complaints, various clarifications, and errata.
In viewing a motion to dismiss, "a complaint should
not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)
6/ As indicated in this Court's Order of April 30, 1991,
plaintiffs' latest "Complaint." dated March 21, 1991,
did not supercede or supplant plaintiffs' earlier claims but rather
supplemented the allegations. The Court has considered each allegation
raised by plaintiffs in each filing.
The factual allegations of the complaint must be-presumed two
and liberally construed in favor of plaintiff. Ramirez de Arellano
v. Weinberger, 745 F.2d 1500, 1506 (D.C. Cir. 1984); 5A C.
Wright & A. Miller, Federal Practice and Procedure,
§ 1357, p. 304 (1990). The plaintiff is entitled to all favorable
inferences which may be drawn from those allegations. Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974).
Summary Judgment, in contrast, is appropriate when there
is "no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law."
Fed R. Civ. P. 56(c). "The inquiry performed is the threshold
inquiry of determining whether there in a need for trial -- whether,
In other words, there are any genuine issues that properly can
be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 250 (1986). In considering a motion for
summary Judgment, the "evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor." Id. at 255. At the same time, however, Rule 56 places
a burden on the nonmoving party to "go beyond the pleadings
and by her own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate 'specific
facts showing that there is a genuine issue for trial.'. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
A. FEDERAL DEFENDANTS' MOTION TO DISMISS
Federal defendants advance several arguments in support
of their motion to dismiss: 1) to the extent that plaintiffs seek
damages for common law torte, those claims should be dismissed
because plaintiffs have not sued the proper defendant, the United
States, and plaintiff. have not exhausted their administrative
remedies as required by the Federal Tort Claims Act ("FTCA"),
28 U.S.C. I' 2671 et seq.; 2) to the extent plaintiffs pursue
constitutional tort, conspiracy, and Statutory claims, plaintiffs
have failed to plead such claims as to each defendant with the
requisite specificity: 3) plaintiffs did not properly serve defendant;
7/ 4) plaintiffs are precluded from litigating most of
their claims because the statutes of limitations ha. runs 5) the
individual federal defendants are entitled-to immunity from suit,
absolute in the case of the President, qualified a. to the other
defendant government officials 6) the regulations at issue are
valid time, place, and manner restrictions that have been adjudged
to be constitutional by various course; and 7) -there is no selective
enforcement or equal protection argument available to plaintiffs
because federal regulations and statutes specifically permit certain
activities and prohibit others.
I. Tort Claims
As a preliminary matter, it appears from plaintiffs' pleadings
7/ Although federal defendants contend that the Court
backs personal jurisdiction over some of the individually sued
defendants because they have not been properly served, on December
19, 1988, the Court specifically directed the Marshals Service
to effectuate service of plaintiffs' second amended complaint
on those defendants who, at that time, did not have the requisite
notice of plaintiffs' lawsuit.
that while they claim that they have been subjected numerous torts,
they are not alleging common law tort causes of action. As plaintiffs
explain, "This action does not sound in tort . . . . The
only reference to torts is that plaintiffs have suffered plenty
of them as the result of defendants' alleged conspiracy to suppress
the exercise and expression of their beliefs.. Plaintiffs' Response
to Federal Defendants' Supplemental Motion to Dismiss ("Plaintiffs'
Response II.), at 18.
In any event, even if plaintiffs had alleged common law
tort violations, their claims would have failed. As a prerequisite
for filing a civil tort action, the FTCA requires that claimants
first file administrative claims with the agency from which they
seek relief. 28 U.S.C. § 2675(a). Plaintiffs do not contend
that they have filed the appropriate administrative claims.
Notwithstanding the exhaustion requirement, all tort claims
against the OMB, the Secret Service, and the individual defendants
sued in their official capacities must also be dismissed because
amendments to the FTCA establish that, under the circumstances
described here, none of the federal defendants can be sued for
alleged common law tort violations. 8/ The statute provides in
"The remedy against the United States provided by
sections 1346(b)-and 2672 of this title for injury or lose of
property, or personal injury or death arising or resulting from
the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment is exclusive of any other civil action
8/ The statute does not, however, apply to constitutional
for monetary damages by reason of the same subject matter against
the employee whose act or omission gave rise to the claim or
against the estate of such employee. Any other civil action or
proceeding for money damages arising out of or relating to the
same subject Batter against the employee the employee's estate
in precluded without regard to when the act or omission occurred."
28 U.S.C. § 2679(b)(1). Upon certification by the Attorney
General, or his designee, 9/ that the individual defendant
was acting within the scope of his employment, the action is deemed
one against the United States, and the United States must be substituted
the sole defendant. 28 U.S.C. §2679(d). On February 10,
1989, John D. Bates, Chief of the Cavil Division, United States
Attorney's Office for the District of Columbia, certified that
the individual federal defendants named prior to that date were
acting within the scope of their employment at the time of the
incidents alleged in plaintiffs' various complaints.
2. Conspiracy Claims
The Supreme court held in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-94
(1971) that a cause of action for violations of a person's constitutional
rights exist. against federal official. while acting in an official
capacity. It in axiomatic, however, that the complaint against
such individuals must allege specific deprivations of plaintiffs'
rights, and include specific factual allegations as to each alleged
9/ Pursuant to 28 C.F.R. § 15.3, the Attorney General
has delegated to United States Attorneys the authority to certify
whether the federal defendants have acted within the scope of
As the Court of Appeals for the District of Columbia Circuit
explained the heightened pleading standard, "The heightened
pleading standard will thus operate, in practice, much like Rule
9(b)'. requirement that 'the circumstances constituting fraud
or mistake shall be stated tin the complaint] with particularity.'
Fed.R.Civ.P. 9(b) (emphasis added). Because conclusory allegations
of unconstitutional or otherwise illegal conduct will not withstand
a public official's dispositive pretrial motion, and because plaintiffs
cannot expect the court's assistance in obtaining the necessary
factual support, plaintiffs bringing suit against public official.
generally must put forward, in their complaints or other supporting
materials, greater factual specificity and 'particularity' than
is usually required." Martin v. Malhoyt, 830 F.2d
237, 257 (D.C. Cir.), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987).
And as the Court of Appeal. further explained in the conspiracy
setting, "[U]nsupported allegations, which fail to specify in
detail the factual basis necessary to enable "defendants]
intelligently to prepare their defense, will not suffice to sustain
a clad. of governmental conspiracy to deprive [plaintiffs] of
their constitutional rights." Hobson v. Wilson, 737
F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985),
(quoting Ostrer v. Aronwald, 567 F.2d 551,_553 (2d Cir.
With respect to plaintiffs' 42 U.S.C. § 1985(3) claim,
10/ Plaintiffs had also raised conspiracy claims in the cases
that were before Judge Oberdorfer, and that Court, too, found
that plaintiffs' 42 U.S.C. §§ 1983, 1985(3), and 1986
conspiracy claims must be dismissed. See Thomas II, 696
F. Supp. at 704-05 ; Thomas I, 681 F. Supp. at 65-72. -
plaintiffs must allege and prove five elements: (1) a conspiracy
and (2) an act in furtherance of the conspiracy ; (3) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; (4) which conspiracy
was motivated by some class-based, invidious, discriminatory animus;
(5) whereby a person is injured or otherwise deprived of a right
or privilege. See Hobson, 737 F.2d at 14.
Although plaintiffs proffer conclusory allegations. and
describe numerous incidents in which they claim to have been wronged,
they have failed to demonstrate the existence of a conspiracy.
Our court of Appeals has suggested, "The essence of a civil
conspiracy in participation in a common and unlawful plan whose
goals are known to all members -- even if all parties are not
privy to each individual act taken in furtherance of the scheme."
Hobson, 737 F.2d at 55.
Plaintiffs, however, have failed to explain sufficiently
how defendants have engaged in a common plan. Moreover, despite
conclusory proffers, plaintiffs have also failed to demonstrate
federal defendants' discriminatory animus. Rather, they have provided
numerous example., and a videotape exhibit of the enforcement
of the Interior regulation., entitled "The Ground War at
Home,. and have asked the court to infer an improper motivation
to extinguish plaintiffs' rights. There is nothing in the record
to suggest that the court should make such a leap. 11/
The videotape exhibit, which was filmed, produced, and
edited solely by Plaintiffs, supports defendants' contention that
plaintiff. have failed to provide the Court with evidence of a
conspiracy. The tape is a jumble of passersby, police, plaintiffs,
and presumably demonstrators for the war in the Middle East and
against the war in the Middle East Often, it is difficult to discern
what transpired, the sequence of events, and the actors because
many portions of the tape were filmed at night Judging from the
time markers, the tape does not proceed chronologically. Although
the events recorded presumably occurred between January 1991 and
March 1991, the tape proceeds from morning to night, night to
morning, or one day to a previous day Consequently, although plaintiffs
may have documented what were, at beat, isolated instances of
seeming misconduct, plaintiffs do not show, and the Court cannot
discern, what prompted the defendants' response In fact, at many
points in the tape, plaintiff. deliberately and persistently-goaded
the defendants and urged them to recite chapter and verse of the
relevant regulations, which, of course, defendants are not obligated
11/ With respect to plaintiffs' § 1986 claim, the
language of the statute establishes unambiguously that a colorable
clad. under § 1985 is a prerequisite to stating an adequate
elate for neglect in1986. specifically preventing the commission
of a wrong under 42 U.S.C. § 1986 specifically, § 1986
provider a right of action for damages against a person who "having
knowledge that any of the wrong. conspired to be done, and mentioned
in section 1985 of this Title, are about to be committed, and
having power to prevent or aid in preventing the commission of
the same, neglects or refuses so to do, if such wrongful act be
committed " 42 U.S.C. § 1986. Because plaintiffs have
failed to state a claim under § 1985, plaintiffs' §
1986 claim must also be dismissed.
Many times, the defendants responded courteously, referred
to plaintiffs by name or "Sir" to get their attention,
cited the regulations, provided plaintiffs with copies of the
rules, and moved on. At several points, the Park Police are shown
gently rousing plaintiffs and ensuring that they were not ill.
In fact, in one recorded scene, defendant. are shown taking the
pulse of a plaintiff who did not appear to be moving; after assuring
themselves that the pulse of the individual plaintiff we. normal,
the defendants roused plaintiff from what appeared to be his slumber.
Under these circumstances, and looking at the pleadings and plaintiffs'
own exhibits in a most charitable light, plaintiffs have failed
to provide the Court with evidence that defendants have invidiously
conspired to extinguish their First Amendment rights.
Similarly, plaintiffs fall to plead their conspiracy claims
under § 1983 with sufficient specificity. Again, although
replete with references to their numerous confrontation. with
defendants, plaintiffs do not state facts that suggest there was
an invidious conspiracy. Moreover, as Judge Oberdorfer has previously
found, " [A]n action for conspiracy to violate § 1983
depends, as does a simple § 1983 action, upon a showing that
the acts of which plaintiffs complain were taken 'under color
of state law.'" Thomas I, 681 F. Supp. at 67. Plaintiffs'
allegation that defendants conspired to promulgate regulations
that infringe upon plaintiffs' First Amendment rights describes
a conspiracy that could only have
proceeded "under color of. federal law. As Judge Oberdorfer
correctly concluded, "Section 1983 provides no relief against
persons acting under color of federal law." Thomas 1,
681 F. Supp. at 68.
3. Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment
Plaintiffs' Fourth, Fifth, Sixth, Ninth, and Fourteenth
Amendment claims are equally deficient under the heightened pleading
standard. As a preliminary matter, plaintiffs cannot argue, as
they do, that defendants subjected plaintiffs to numerous torts
in violation of the Fourteenth Amendment, for the Fourteenth Amendment
is applicable only to the states, not to the District of Columbia.
Moreover, plaintiffs have failed to articulate a feasible nexus
between their constitutional claims and specific facts relating
to each federal defendant. Consequently, these claim. must be
4. Equal Protection/Selective Enforcement Claim
Plaintiffs further complain that the Interior regulations
have been discriminatorily enforced, for while the regulations
have been applied to plaintiffs, they have not been applied with
equal vigor to other groups, in particular, the Presidential Inauguration
Committee (the "Committee"). To prevail on a clad. of
selective prosecution, plaintiffs must show both that they were
singled out for prosecution among others similarly situated and
that the decision to prosecute was improperly motivated. See
United States v. Mangieri, 694 F. 2d 1270, 1273 (D.C. Cir.
12/ Plaintiffs' selective enforcement claim, presumably
brought under the Fifth Amendment, and plaintiffs' First Amendment
claim are discussed below.
There is ample authority, however, to support the activities
that were conducted by the Committee. In fact, 36 U.S.C. §
724 specifically authorizes the Secretary of the Interior to grant
permits for the use of federal grounds during-the inaugural period.
Moreover, 16 U.S.C. § 3 commands the Secretary of the Interior
to promulgate rules and regulations "as he may deem necessary
or proper for the use and management of the parks, monuments,
and reservations under the jurisdiction of the National Park Service."
Here, the American Bicentennial Presidential Inaugural
Committee applied for, and was granted, a permit for various inaugural
activities. The letter granting the permit and the permit itself
13/ not only provide for the construction of reviewing stands
and other structures that would otherwise be prohibited by 36
C.F.R. § 7.96 but also impose significant restrictions on
the permittee: use of Lafayette Park and the White House sidewalk
we. granted only for the period from November 20, 1988 through
February 17, 1989; the Committee was required to obtain public
and employee liability insurance; the Committee had to agree to
"[p]ay the United States the full value for all damages.
to the lance or other property of the United States caused by
him or by 0a employees, contractors or employees of the contractors;"
14/ and the Committee
13/ See Letter from James J. McDaniel, Associate Regional
Director, White House Liason: to Stephen H. Studdert, Executive
Director, The American Bicentennial Presidential Inaugurals dated
November 25, 1988; attached as Exhibit 10 to Federal Defendants'
Motion to Dismiss ("Federal Defendants' Motion") ("Exhibit
14/ Exhibit 10, at 2.
had to provide a bond or deposit for the permit in the amount
of $50,000.00. It in undisputed that the Committee fulfilled each
and every condition-
The Court of Appeals for this Circuit has examined and
rejected a claim comparable to plaintiffs' equal protection argument
raised here. In United States v. Grace, 778 F.2d 818 (D.C.
Cir. 1985), cert. denied, 479 U.S. 844 (1986), the defendant was
prosecuted for violating the "center zone" provision
of the White House sidewalk regulation by holding a sign while
standing in the middle of the sidewalk. In challenging her conviction,
Grace argued that her equal protection rights had been violated
because in constructing grandstands for the 1985 inaugural, the
Committee had placed the presidential seal, a sign, on the center
of the grandstands, and, thus, in the center zone of the sidewalk.
Because neither the Committee nor its members were prosecuted,
Grace contended a violation of equal protection. The court of
Appeals flatly rejected the argument and found the relevant inquiry
to be "whether the Park Service has forbidden appellant's
conduct based on the content of her sign. Id. at 822.
Plaintiffs have failed to show that the difference in treatment
between plaintiffs and the Inaugural Committee is based on the
content of plaintiffs' messages. Moreover, plaintiffs have neither
applied for a permit nor consented to the types of restrictions
imposed on the Committee and provided for by regulation and statute.
The conduct of the inaugural Committee is, therefore, entirely
separate and distinct from the continuous vigil
maintained by plaintiffs.
5. Pattern and Practice Claim
Finally, plaintiffs allege that federal defendants have
engaged in a pattern and practice of harassment in violation of
the First Amendment. Again, plaintiffs' argument must be rejected.
A. a preliminary matter, plaintiffs have failed to demonstrate
that the individual defendants subjected plaintiffs to a pattern
and practice of harassment in violation of the Constitution.
As apparent from the videotape, which selectively documents plaintiffs'
and defendants activities since January 1991, defendant officers
are depicted enforcing the Interior regulations and in many instances,
plaintiffs are shown resisting arrest. Plaintiffs' continuous
use of Lafayette Park, coupled with the presence of sleeping bags
and other personal items, all documented on videotape, support,
rather than detract from, defendants' position that plaintiffs
were not complying with the regulation that prohibits camping.
Moreover, defendants do not dispute that there was a substantial
increase in activities, by plaintiffs and other demonstrators,
in Lafayette Park at the onset of the war with Iraq and a corresponding
increase in Park Police presence and enforcement of the Interior
regulations. There is, however, no factual support for plaintiff.'
contention that defendants violated the law by enforcing the Interior
regulation. more stringently during this period, thereby destroying,
what plaintiffs term, the status quo.
Even if plaintiffs had pointed to scattered instances of
misconduct, 15/ it is clear that plaintiffs are not
entitled to relief. First, the federal defendant officials would
be entitled to a defense of qualified immunity Under Harlow v
Fitzgerald, 457 U.S. 800, 818 (1982), "[G]overnment official.
performing discretionary functions, generally are shielded 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 ." 16/
This is not a case in which the federal defendant. were
acting pursuant to patently unconstitutional regulation. In fact,
insofar an the regulation proscribes camping, the Supreme Court
has already held in Clark v CCNV, 468 U,S, 288 (1984),
that that regulation is constitutional Similarly, insofar a. plaintiffs
challenge provisions of the regulation relating to demonstrations
on the White House sidewalk, the Court of Appeals for this Circuit
has, on several occasions, upheld the regulations as
15/ The entire tape must be viewed to appreciate that,
as expressed above, the recorded events do not proceed chronologically;
and because plaintiffs are often depicted goading defendant officers,
it is difficult to discern, what, if anything, prompted the officers'
16/ Plaintiffs have moved to compel discovery of certain
documents and photographs in the possession of defendants, or
the possession of agencies, officer., or employees of the United
States government Both the Supreme Court and our Court of Appeals,
however, have stated that when a defense of immunity has been
raised, discovery should not be permitted until the threshold
immunity question is resolved See Harlow, 457 U.S.
8 at 818 ("Until this threshold immunity question is resolved,
discovery should not be allowed ."); Fludd v United States
Secret Service, 771 F 2d 549, 554 (D C Cir 1985) Accordingly,
plaintiffs' motion to compel discovery is denied, and the federal
defendants' motion for a protective order in granted.
constitutional. See, e.g., Juluke v. Hodel, 811 F.2d
1553, 1559-62 (D.C. Cir. 1987); Grace, 778 F.2d at 820-22:
White House Vigil for the ERA Committee v. Clark, 746 F.2d
1518, 1534-41 (D.C. Cir. 1984). The sign attendance requirement
was also upheld against a constitutional attack. See United
States v. Musser, 873 F.2d 1513, 1516-18 (D.C. Cir.), reh.
denied, 883 F.2d 84 (D.C. Cir.), cert. denied, 110 S. Ct. 518
(1989). And the constitutionality of 36 C.F.R. § 7.96(g)(5)(x)
in Thomas II were found to be clearly valid for reasons
with which this Court agrees. See Thomas II, 696 F. Supp.
In any event, "[o]ne instance, however egregious,
does not a pattern or practice make.. Martin, 830 F.2d at 255.
As the Court of Appeals found in Martin, "[W]e find no factual
support for plaintiffs' claims that a pattern of arrests without
cause pervades U.S. Park Police practice. Each plaintiff points
to a single instance -- his or her own arrest -- as illustrative
of the alleged unlawful pattern; beyond these personal encounters,
plaintiffs tender only 'conclusory allegations.' Id. Here, too,
plaintiffs point to their own arrests as evidence of an unlawful
pattern and practice. Even if the arrests did not result in conviction,
there is no factua1 support for plaintiffs' conclusory allegations.
that defendants knowingly violated the law, or, for that matter,
violated the law at all. There is nothing to reflect that defendants
acted other than reasonably in pursuing what they
believed constituted regulatory violations. 17/
D. DISTRICT OF COLUMBIA DEFENDANTS' MOTION TO DISMISS AND/OR
The District of Columbia defendants (.D.C. defendants)
also contend that the instant action should be dismissed because
plaintiffs' claims against D.C. defendant. are barred by the status.
or limitations and because there is no allegation of a custom
or policy sufficient to support a civil rights claim against the
District of Columbia.
The incidents that allegedly give rise to plaintiffs' claims
against the individual D.C. defendant. concern the actions of
Captain Canfield, who arrested William Thomas on March 1l. 1983
for setting fire to a structure in the middle of the sidewalk
and an alleged assault by officer Minzak on March 15, 1983/ Because
these actions occurred eight years ago, and the statute of limitations
for 42 U.S.C. § 1983 actions is three years, 18/
plaintiffs' § 1983 claims against Captain Canfield and Officer
Minzak are time-barred." 19/
17/ In any event, if it is appropriate plaintiffs are-surely-free
to challenge their arrests in the proceedings in which they are
18/ See Owens v. Okure, 109 S. Ct. 573, 582
19/ Nor can plaintiffs contend that the claims
were tolled during the pendency of their previous litigation,
which Judge Oberdorfer dismissed without prejudice. As our Court
of Appeals held in Dupree v. Jefferson, 666 F.2d 606, 611
(D.C. Cir. 1981), "We therefore 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 imitations."In a further attempt to preserve their claims from a statute
of limitations defense, plaintiffs complain that defendants erected
a fence on January 20, 1989 and that "[t]here is a notable
similarity between the events of January 20, 1989 and March 11,
1983." Plaintiffs' Response to the Reply of District of Columbia
to Submissions of Plaintiffs ("Plaintiffs' Response III.),
at 1. Plaintiffs have failed to show, however, how the construction
of the fence was unlawful or how defendants impermissibly "curtail[ed]
Constitutionally protected activity. Plaintiffs' Response III,
In any event, plaintiffs' claim against Captain Canfield
had been developed before then- United States Magistrate Burnett
who found that Captain Canfield had "acted reasonably in
first approaching the plaintiff and subsequently arresting him
for arson following his conduct in 'torching' the structure."
Memorandum Opinion, attached as Exhibit A to Motion of District
of Columbia to Dismiss and/or for Summary Judgment, at 15. The
Court seen no reason to reject the findings of that Magistrate
Plaintiffs' civil rights claims against the District of
Columbia also cannot survive. As a threshold matter, a court,
in determining whether a claim is cognizable under 42 U.S.C. §
1983, must decide: (1) whether the conduct complained of was committed
by a person acting under color of state laws and (2) whether the
conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States. Eg.
42 U.S.C. § 1983. Complaints against a municipality that
contain only the two elements enumerated in the statute, however,
do not adequately state a claim under 42 U.S.C. 5 1983. a municipality
cannot be held vicariously liable under a theory of respondent
superior for the constitutional torte of individual officers.
As the Supreme Court explained in Monell v. Department of Social
"Local governing bodies can be sued directly under Section
1983 for monetary, declaratory, or injunctive relief where . .
. the action that is alleged to be unconstitutional implements
or executes a policy statement. ordinance. regulation, or decision
officially adopted and promulgated by that body's officers."
436 U.S. 658, 690-94 (1978) (emphasis added). "To succeed,
a plaintiff must show a course deliberately pursued by the city,
as opposed to an action taken unilaterally by a non-policymaking
municipal employee, and an affirmative link between the [city's]
policy and the particular constitutional violation alleged."
Carter v. District of Columbia, 795 F.2d 116, 122 (D.C.
Cir. 1986) (citations omitted).
In the instant action, plaintiffs failed both to show conduct
that deprived defendants wrongfully of their rights and to allege
custom or policy of the District of Columbia. Plaintiffs simply
proffer bald assertions of municipal liability. As the Court of
Appeals for the District of Columbia Circuit explained the pleading
requirements, "The mere assertion that the police officer
acting fully within the scope of his employment and pursuant to
the policies of defendant . . . is not specific enough to withstand
dismissal. Petitioner has pointed to no rule, procedure or policy
of the District which would require or even permit the alleged
unconstitutional actions." Miller v. Barry, 698 F.2d
1259, 1261 (D.C. Cir. 1983) (emphasis in original) (citations.
omitted). Under the standards set forth in Miller, plaintiffs'
claims against the
District of Columbia must be dismissed. 20/
For the reasons expressed above, it is hereby
ORDERED that federal defendants' motion to dismiss is granted; it is
FURTHER ORDERED that the District of Columbia's motion
to dismiss and/or for summary judgment is granted.
IT IS S0 ORDERED.
May 24, 1991
/s/ Joyce Hens Green
JOYCE HENS GREEN
United States District Judge
20/ Because plaintiffs have failed to show cause for
imposing sanctions against defendants, their motions for sanctions
are denied. All other outstanding motions and arguments have been
considered but are also denied as meritless.