Evangelou v. District of Columbia

• Decision Date: 05 November 2012
• Docket Number: Civil Action No. 11–531 (RC).
• Citation: 901 F.Supp.2d 159
• Parties: Evan EVANGELOU, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

901 F.Supp.2d 159

Evan EVANGELOU, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 11–531 (RC).

United States District Court,

District of Columbia.

Nov. 5, 2012.

Eric Hans Kirchman, Kirchman & Kirchman, Rockville, MD, for Plaintiff.

Denise J. Baker, Office of the Attorney General for District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

Evan Evangelou brought this suit against the District of Columbia and its chief of police, alleging that his constitutional rights were violated when he was fired by the Metropolitan Police Department. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Their motion will be mostly denied.

I. BACKGROUND

In his complaint, Evan Evangelou alleges that he was hired by the District of Columbia's Metropolitan Police Department (“MPD” or “police department”) to be a police officer in September 2008. Am. Compl. ¶ 5. For the first eighteen months, his employment was probationary. Id. During that probationary period, another officer accused Mr. Evangelou of extortion. Id. ¶ 6. ¹ Mr. Evangelou had his police power suspended, his badge and pistol confiscated, and he was assigned to mind a desk at the Police Boys and Girls Club. Id. ¶ 7.

After the accusation, Mr. Evangelou was contacted by a detective from the internal affairs division of the police department. Id. ¶ 8. The detective said that he was conducting a criminal investigation into the allegations against Mr. Evangelou, and that anything Mr. Evangelou said could be used against him in a criminal proceeding. Id. Relying on his constitutional right against self-incrimination, Mr. Evangelou refused to answer the detective's questions. Id. His lawyer then contacted the detective to confirm that Mr. Evangelou was invoking his Fifth Amendment rights and would not agree to be interviewed. Id. ¶ 9. Mr. Evangelou heard nothing more about the criminal investigation. Id.

In March 2010, two weeks before the end of Mr. Evangelou's probationary period, he received a letter from Cathy Lanier, the chief of police at the MPD. Id. ¶ 11. The letter from Chief Lanier terminated Mr. Evangelou's employment without explanation, effective several days later. Id. Mr. Evangelou alleges that Chief Lanier decided to fire him because he asserted his constitutional right against self-incrimination, refusing to answer questions about the allegations of extortion unless he was assured that any information he provided would not be used to prosecute him. Id. ¶ 13.

After giving notice to the Mayor of the District of Columbia, id. ¶ 14, Mr. Evangelou filed this suit against the District and Chief Lanier, in both her official and her individual capacities. He claims that the defendants are liable under 42 U.S.C. § 1983 for violating his Fifth Amendment right against self-incrimination, id. ¶¶ 15–22, as well as his right to due process of law before being permanently defamed or stigmatized as unsuitable for employment, id. ¶¶ 23–29. Mr. Evangelou also alleges that the defendants violated D.C.Code § 5–105.04 by failing to give him advance written notification of the reasons for his termination. Id. ¶¶ 30–36. The defendants have moved to dismiss the entire complaint for failure to state a claim on which relief can be granted.

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). Such motions allege that a plaintiff has not properly stated a claim; they do not test a plaintiff's ultimate likelihood of success on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint is only required to set forth a short and plain statement of the claim, in order to give the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

A court considering this type of motion presumes the factual allegations of the complaint to be true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or to plead law or match facts to every element of a legal theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal citations omitted). Nonetheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

The court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

III. ANALYSIS

Section 1983 provides a cause of action against

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.

42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim “must allege both (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted ‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d 308, 312 (D.C.Cir.1991). As a municipal corporation, the District is a “person” within the meaning of the statute and is therefore subject to liability “when an official policy or custom causes [a] complainant to suffer a deprivation of constitutional” or other federal right. Carter v. District of Columbia, 795 F.2d 116, 122 (D.C.Cir.1986); accord Warren, 353 F.3d at 38.

Mr. Evangelou alleges that, in firing him, Chief Lanier and the District violated two of his constitutional rights: the right against self-incrimination, see, e.g., Gardner v. Broderick, 392 U.S. 273, 278–79, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), and the right to due process of law before being permanently defamed as unsuitable for employment or stigmatized in a way that seriously affects one's ability to pursue his chosen profession, see O'Donnell v. Barry, 148 F.3d 1126, 1139–41 (D.C.Cir.1998). He requests both damages and injunctive relief. In his complaint, Mr. Evangelou also asserted a separate claim for the defendants' alleged violation of D.C.Code § 5–105.04, but on this motion he has conceded that that claim should be dismissed, see Memo. in Opp. to Defs.'s Mot. to Dismiss at 5, and so it will be. The court proceeds to consider the defendants' arguments that the claims for constitutional violations should also be dismissed.

A. Self–Incrimination

Mr. Evangelou first alleges that Chief Lanier and the District fired him for asserting his Fifth Amendment right against self-incrimination. See Am. Compl. ¶ 19. The defendants argue that Mr. Evangelou's claim should be dismissed because it fails to properly allege a violation of the constitutional right. The District goes on to argue that the complaint does not satisfythe Monell standard for municipal liability, and that the suit against Chief Lanier in her official capacity is redundant. Chief Lanier also maintains that, in her individual capacity, she is entitled to qualified immunity. The court turns first to the adequacy of the constitutional violation alleged.

i. Constitutional Violation

“Like other individuals, government employees enjoy the protection of the privilege against self-incrimination. Yet the government, like private employers, needs to ensure that its employees are faithfully performing their duties. The government therefore may fire employees who refuse, on the basis of their Fifth Amendment privilege, to answer questions concerning the performance of their duties, so long as the employees' answers could not be used against them in a criminal prosecution.” Nat'l Fed'n of Fed. Employees v. Greenberg, 983 F.2d 286, 291 (D.C.Cir.1993) (emphasis added) (citing Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 284–85, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner, 392 U.S. at 278–79, 88 S.Ct. 1913;Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)); accord Chavez v. Martinez, 538 U.S. 760, 768, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (Thomas, J.) (noting that “governments may penalize public employees and government contractors (with the loss of their jobs or government contracts) to induce them to respond to inquiries, so long as the answers elicited (and their fruits) are immunized from use in any criminal case against the speaker ”) (...