Atherton v. District of Columbia Office of Mayor

Citation567 F.3d 672
Decision Date02 June 2009
Docket NumberNo. 07-5195.,07-5195.
PartiesPeter James ATHERTON, Appellant v. DISTRICT OF COLUMBIA OFFICE OF the MAYOR, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 04cv00680).

Sarah Campbell, Student Counsel, argued the cause as amicus curiae in support of appellant. With her on the briefs were James E. Coleman, Jr., appointed by the court, Sean E. Andrussier, Attorney, and James McDonald, Eugenie Montague, Emily Sauter, and Eric Wiener, Student Counsel.

Peter J. Atherton, Pro Se, was on the briefs for appellant.

Judith A. Kidwell, Assistant U.S. Attorney, argued the cause for Federal Appellees. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees Suzanne Bailey-Jones, et al. With him on the brief were Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

On April 9, 2001, appellant Peter James Atherton was sworn in as a District of Columbia Superior Court grand juror. The grand jury was scheduled to deliberate for 25 days. However, on April 11, Atherton was permanently removed from grand jury service after an Assistant United States Attorney ("AUSA") who was presenting evidence to the grand jurors reported to the supervising AUSA, Daniel Zachem, that the jurors were complaining about Atherton. After meeting with members of the grand jury, Zachem contacted the Director of Special Operations at the Superior Court, Roy Wynn, who directed him to juror officer Suzanne Bailey-Jones. Zachem discussed the matter with Bailey-Jones and then returned to the jury room, confiscated Atherton's notes, and directed him to report to the Juror Office. Bailey-Jones then summarily and permanently removed Atherton from the grand jury for being "disruptive." Atherton was never given a written explanation for his removal from the grand jury, and he was not afforded a hearing before any court official or judge.

In April 2004, Atherton filed a pro se complaint in the District Court, contending that he was unlawfully removed from grand jury service because of his deliberative judgments and his Hispanic ethnicity. Atherton's complaint named Bailey-Jones, Wynn, Zachem, and several other city and federal officials, as well as the District of Columbia and the Department of Justice Office of the Attorney General. The complaint alleged constitutional violations of due process and equal protection against the District of Columbia ("District") defendants and the federal defendants, citing 42 U.S.C. §§ 1983, 1985(3), 1986, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as a common law fraud claim.

The District Court granted the District and federal defendants' motions to dismiss the complaint for failure to state a claim. Atherton v. District of Columbia Office of the Mayor, et al., No. 04-0680, 2007 WL 1041659 (D.D.C. Apr. 5, 2007). The District Court first found that Atherton had failed to allege that any defendants other than Bailey-Jones and Zachem were directly involved in his dismissal, and that Atherton had not stated a claim for municipal liability against the District of Columbia. The court also dismissed the §§ 1985(3) and 1986 claims, and found that the fraud claim against Zachem was barred by sovereign immunity. Finding that Atherton's allegations did not support any personal involvement by Wynn in the decision to remove Atherton from the grand jury, the District Court dismissed the equal protection and due process claims against Wynn on the ground that Atherton had failed to state claims upon which relief may be granted. Although the District Court found that Atherton had stated claims against Bailey-Jones and Zachem for due process and equal protection violations, these claims were dismissed on the ground that Bailey-Jones and Zachem were entitled to absolute immunity. Atherton, with the able support of appointed amicus curiae, now seeks reversal of the District Court's judgment.

We reverse the District Court's dismissal of the due process claims against Bailey-Jones and Zachem. The District Court erred in holding that Bailey-Jones and Zachem enjoy absolute immunity for the removal of a grand juror. We will remand the case to allow the District Court to assess whether Bailey-Jones and Zachem are protected by qualified immunity. We affirm the District Court's dismissal of Atherton's equal protection and § 1985(3) claims, and his due process claim against Wynn, because the complaint and supporting submissions fail to state causes of action. We affirm the District Court's dismissal of all remaining claims.

A. Facts

On review of a motion to dismiss, we "treat the complaint's factual allegations as true ... and must grant [Atherton] the benefit of all inferences that can be derived from the facts alleged." Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003) (quotation marks and citation omitted). The facts recited below are drawn from the complaint and from additional materials submitted by Atherton, including affidavits and exhibits incorporated therein. The parties do not dispute that these documents may be considered for the purposes of this appeal. See Amicus Br. at 3 n. 1; D.C. Br. at 4 n. 2; Greenhill v. Spellings, 482 F.3d 569, 572 (D.C.Cir.2007) (noting courts may "consider supplemental material filed by a pro se litigant in order to clarify the precise claims being urged"); Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C.Cir.2006) ("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.").

1. Atherton's Complaint

Atherton is a D.C. resident with degrees in electrical and nuclear engineering. Compl. ¶¶ 1, 68. On April 9, 2001, he was sworn in as a D.C. Superior Court grand juror for a term scheduled to last 25 days. Id. ¶¶ 1, 16. However, on April 11, 2001, Atherton was permanently removed from the grand jury. Id. ¶¶ 22-24.

Atherton and the grand jurors with whom he served were given jury instruction books identifying crimes and their elements. Atherton believed that some of the cases for which indictments were being sought included alleged crimes which were not in the instruction book. Id. ¶ 18. Concerned that grand jurors had voted to indict without knowing the elements of the crimes, Atherton requested additional information from an AUSA on the elements of crimes that were not contained in the instruction book. Id. ¶¶ 18-19. Some jurors "seemed upset" because they had voted to indict without knowledge of the elements "and a new vote would be needed once the elements of the charge were known." Id. ¶ 20. Atherton "felt a hostile attitude from a few members of the jury when there was continuing rebuttal to every comment [he] made concerning deliberation on elements of crimes." Id. ¶ 66.

Atherton also felt that his fellow grand jurors reacted negatively to his Hispanic ethnicity. At one point during their deliberations, the grand jury was considering a homicide case involving an altercation between black and Hispanic individuals. After a Hispanic witness had finished testifying, Atherton thanked the witness in Spanish. Atherton subsequently perceived hostility from other grand jurors based on this incident. Id. ¶¶ 64-67. He is half Mexican and "was the only semi-fluent [S]panish speaking grand juror." Id. ¶ 67.

During the course of grand jury deliberations on April 11, 2001, supervising AUSA Zachem entered the jury room where the grand jurors were deliberating, confiscated Atherton's notes, and directed Atherton to immediately report to Wynn's office. Id. ¶ 23-24. Atherton went to Wynn's office as he had been instructed. Id. Atherton was then directed to Bailey-Jones, who "permanently dismissed" him. Id. ¶ 24. Atherton "was never permitted the opportunity to defend himself," id. ¶ 28, and Bailey-Jones did not provide reasons for his dismissal, other than that he was allegedly "disruptive." Id. ¶ 24. Atherton asked for a written explanation and Bailey-Jones assented to this request. However, written notice was never given. Id. ¶¶ 28, 44. "Atherton left feeling very humiliated, embar[r]assed and questioning his self worth, and did not return to grand jury duty." Id. ¶ 27.

2. Additional Materials Submitted by Atherton in Support of His Complaint

The record before the District Court includes a copy of an email that Zachem wrote to Bailey-Jones the day after Atherton's removal. See Email from Dan Zachem to Suzanne Bailey-Jones (Apr. 12, 2001), reprinted in Joint Appendix ("J.A.") 61-62 ("Zachem email"). According to Zachem's account, an AUSA who was presenting evidence to the grand jury informed Zachem that some of the grand jurors had requested to see a supervisor about a "scientist" who was frustrating his colleagues. Id., J.A. 61. The email states:

[T]he AUSA reported that "the scientist" was desirous of additional written materials, including additional jury instructions and code provisions, and these requests, in conjunction with extensive questioning of both prosecutor and witness alike, [were] clearly agitating other members of the grand jury. Efforts were made to satisfy the requests of "the scientist" by, for example, providing xerox copies of several code provisions, but these efforts proved unsuccessful in mollifying his concerns. At...

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