Bush v. Butler, Civil Action No. 07-512 (PLF).

CourtUnited States District Courts. United States District Court (Columbia)
Citation521 F.Supp.2d 63
Docket NumberCivil Action No. 07-512 (PLF).
PartiesPatrick Henry BUSH, Plaintiff, v. James Q. BUTLER, Esquire, et al., Defendants.
Decision Date14 November 2007
521 F.Supp.2d 63
Patrick Henry BUSH, Plaintiff,
James Q. BUTLER, Esquire, et al., Defendants.
Civil Action No. 07-512 (PLF).
United States District Court, District of Columbia.
November 14, 2007.

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Patrick Henry Bush, Hagerstown, MD, pro se.

John Tremain May, Jordan, Coyne & Savits LLP, James Quincy Butler, Butler Legal Group, PLLP, Washington, DC, for Defendants.


PAUL L. FRIEDMAN, District Judge.

Plaintiff, proceeding pro se, brings this action against two attorneys, James Q. Butler and Christine Green; Yanique Moore, an investigative reporter; the Christian Civil Liberties Union; and Ten Unknown John Does. Mr. Bush's complaint arises from the defendants' efforts in representing him during legal proceedings in the State of Maryland. The complaint asserts a number of causes of action under federal statutes and common law claims. Defendants move for dismissal.1 For the reasons stated below, the motions will be granted and the case dismissed.


Plaintiff is incarcerated at the Eastern Correctional Institution in Westover, Maryland. Compl. ¶ 3. He alleges that on or about March 20, 2006, certain of the defendants solicited him as a client and represented that they were post-conviction remedy specialists. Id. ¶ 5. Plaintiff agreed to pay defendants $2,500.00 for their services. Id. ¶ 6. The complaint alleges that these defendants promised to provide full legal representation in state and federal habeas corpus proceedings and to pursue the case to the Supreme Court, if necessary. Id. ¶¶ 6, 8-10. The Christian Civil Liberties Union agreed to procure the services of defendant Yanique Moore, an investigative reporter, to publicize plaintiffs case. Id. ¶ 7.

On April 6, 2006, defendant Butler filed a notice of appearance on plaintiffs behalf in St. Mary's County Circuit Court in Maryland. Id. ¶ 13. Thereafter, plaintiff's counsel filed two briefs requesting post-conviction relief. Id. ¶ 14. Plaintiff claims that defendant Butler threatened to withdraw as counsel for plaintiff on August 10, 2006 because he had been reprimanded by the Clerk of the Court for actions taken on plaintiffs behalf. Id. ¶ 15. It appears, however, that defendant Butler did not withdraw from the representation at that time.

On October 26, 2006, plaintiff's motion for post-conviction relief was denied. Id. ¶ 16. Defendant Butler moved to withdraw as plaintiffs counsel on November 3, 2006. Id. ¶ 17. Plaintiff alleges that he was denied the effective assistance of

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counsel and that defendant Butler was not licensed to practice law in the state of Maryland. Id. ¶¶ 17-18.


Defendants move to dismiss the complaint on the ground that plaintiff has failed to state a federal cause of action upon which relief may be granted, and that the Court lacks jurisdiction over the common law claims because there is not complete diversity of citizenship between the parties. The Court may dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure only if it appears, assuming the alleged facts to be true and drawing all inferences in plaintiff's favor, that plaintiff cannot establish "any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions ... Factual allegations must be enough to raise a right to relief above the speculative level." Bell AU. Corp. v. Twombly, 127 S.Ct. at 1964-65 (citations and internal quotation marks omitted). The Court need not "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the Court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Communications Corp., 16 F.3d at 1276.

When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dispose of the motion on the basis of the complaint alone or may consider certain materials beyond the pleadings. "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992). The Court is not limited by the allegations set forth in the complaint, "but may also consider material outside the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F.Supp.2d 138, 142 (D.D.C.2005). "The plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Government of Rwanda v. Rwanda Working Group, 150 F.Supp.2d 1, 5 (D.D.C.2001).

A. Federal Claims

Plaintiff alleges that defendants engaged in a conspiracy to deprive him of his civil rights, in violation of 42 U.S.C. § 1985(3), and failed to prevent a conspiracy, in violation of 42 U.S.C. § 1986. In relevant part, 42 U.S.C. § 1985(3) provides:

If two or more persons in any State or Territory conspire ... 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury

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or deprivation, against any one or more of the conspirators.

In order to bring a claim under Section 1985(3), a plaintiff must show (1) an act in furtherance of (2) a conspiracy (3) to deprive a person or class of person of the equal protection of the laws, or of equal privileges and immunities under the laws. Alexander v. Washington Gas Light Co., 481 F.Supp.2d 16, 31 (D.D.C.2006) (citation and quotation omitted). "There can be no recovery under § 1985(3) absent a violation of a substantive federal right." Wiggins v. Hitchens, 853 F.Supp. 505, 511 (D.D.C.1994). Furthermore, the statute only applies to conspiracies motivated by some class-based, invidiously discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Robinson v. District of Columbia, No. 03-1455, 2006 WL 2714913, at *2 (D.D.C. Sept. 22, 2006). "This requirement is to be read narrowly to avoid converting Section 1985 into general federal tort law." McCreary v. Heath, Civil No. 04-0623, 2005 WL 3276257, at *5 (D.D.C. Sept.26, 2005).

The elements of a civil conspiracy are: (1) an agreement between two or more persons; (2) to commit an unlawful action, or to commit a lawful act by unlawful means; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; and (4) the overt act was done pursuant to a common scheme. Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983); Valore v. Islamic Republic of Iran, 478 F.Supp.2d 101, 108-09 (D.D.C.2007). "[T]he principal element of [a civil conspiracy] is art agreement between the parties to inflict a wrong against or injury upon another art overt act that results in damage." Brady v. Livingood, 360 F.Supp.2d 94, 104 (D.D.C.2004).

Plaintiffs Section 1985 conspiracy claim is that the defendants agreed, to punish plaintiff by interfering with his access to the courts, breaching their contract with him, and through fraudulent misrepresentations. Plaintiff further alleges that the defendants' conduct "was motivated by an invidiously discriminatory animus towards those persons who had publicly criticized the defendants[] for failing to provide them with competent legal and investigative services." Compl. ¶ 50.

To survive a motion to dismiss a Section 1985 claim, plaintiff must set forth more than conclusory allegations of an agreement. See Brady v. Livingood, 360 F.Supp.2d at 104 (citing Graves v. United States, 961 F.Supp. 314, 321 (D.D.C.1997) (dismissing claim where plaintiff merely alleged that his former employer "colluded" with the Department of Education to keep him underemployed, without putting forth "any facts showing the existence or establishment of an agreement")) and Estate of Phillips v. District...

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