Heenan v. Leo

• Decision Date: 30 November 2007
• Docket Number: Civ. Action No. 05cv958 (RJL).
• Citation: 525 F.Supp.2d 110
• Parties: Daniel HEENAN, Plaintiff, v. Officer Suzanne LEO, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 110

525 F.Supp.2d 110

Daniel HEENAN, Plaintiff, v. Officer Suzanne LEO, et al., Defendants.

Civ. Action No. 05cv958 (RJL).

United States District Court, District of Columbia.

November 30, 2007.

James Matthew Henderson, Sr., Washington, DC, for Plaintiff.

Shana Lyn Frost, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Daniel Heenan ("plaintiff') has sued the Metropolitan Police Department ("MPD") and MPD Officers Suzanne Leo, Willie Lawrence, and Eduardo Ashby, alleging, inter alia, that the defendants violated his First Amendment, due process, and equal protection rights. Plaintiff has also brought claims of assault, battery, and intentional infliction of emotional distress against Officer Ashby. Currently before the Court are the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, defendants' motion will be GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiff is a self-described "sidewalk counselor" who engaged in weekly prayer and "counseling" activities outside of the Planned Parenthood of Metropolitan Washington (PPMW) facility in 2004 and 2005. Amend. Compl. ¶ 10-13, 16. Heenan alleges that on May 1, 2004, he was "counseling" outside of the PPMW facility when he was assaulted by Harry James, a PPMW security guard. Id. ¶ 31. According to Heenan, the defendant officers witnessed the assault but refused to take action against Mr. James. Id. ¶ 31. 34. Instead, the MPD officers ordered him to remain at least twenty feet away from the facility.¹ Id. ¶ 35.

Two weeks later, on May 15, 2004, Heenan alleges that he was again protesting in front of the PPMW facility when Officer Ashby arrived on the scene, grabbed him from behind, lifted him off the ground and pushed him against a fence. Id. ¶ 55-56. According to Heenan, Ashby warned him that he would arrest him for any further disturbance. Id. ¶ 57.

Over a year later, on July 30, 2005, Heenan alleges that he attempted to protest at the PPMW facility, but was confronted by "chaotic" pro-choice demonstrators who blocked his access to the sidewalk directly in front of the facility. Id. ¶ 62, 65-66. According to Heenan, he and his fellow pro-life demonstrators were harassed and assaulted by the pro-choice group, but the MPD officers refused to intervene. Id. ¶ 76.

On the basis of this alleged conduct, Heenan has brought suit pursuant to 42 U.S.C. § 1983, alleging that the MPD and the defendant officers violated his First Amendment (Counts II and III), equal protection (Count IV), and due process rights (Count V). Plaintiff has further alleged intentional torts by Officer Ashby (Count VI), that the MPD's failure to adequately train its officers caused his injuries (Count VII) and that the restrictive zone imposed in United States v. Alaw, does not restrict his ability to protest at the PPMW facility (Count I). Defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia, that the MPD is non sui juris and that Heenan has failed to show that the individual defendants violated his constitutional rights.

II. ANALYSIS

A court may dismiss a complaint under Rule 12(b)(6) for failure to state a claim upon which relief may be granted if it appears, assuming the alleged facts to be true and drawing upon all inferences in the plaintiffs favor, that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). In ruling on a motion to dismiss, the Court will liberally construe the plaintiffs complaint, but will not "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal, 16 F.3d at 1276.

A. CLAIMS AGAINST THE MPD

Although plaintiff has named the MPD as a defendant, it is well settled that the MPD is non sui juris and, therefore, cannot sue or be sued. McRae v. Olive, 368 F.Supp.2d 91, 94 (D.D.C.2005); Robinson v. District of Columbia, 2005 WL 491467 (D.D.C. March 2, 2005); Ray v. District of Columbia, 535 A.2d 868, 869 n. 2 (D.C.1987). Accordingly, defendant's motion to dismiss the plaintiff's claims against the MPD will be GRANTED.

B. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

1. The Alaw Injunction

In Count I of the Amended Complaint, Heenan alleges that the defendant officers barred him from protesting within 20 feet of the PPMW facility based on their erroneous interpretation of the injunction issued by Judge Kessler in United States v. Alaw, Civil Action No. 98-cv-1446. Heenan contends that he was not a party to the Alaw suit and that the enforcement of the injunction against him "violated [his] constitutionally protected rights." Compl. ¶ 86.

Assuming, however, that the Alaw injunction does not apply to Heenan, there is no evidence that the defendant officers were acting pursuant to that injunction when they ordered Heenan out of the immediate vicinity of the PPMW facility. Instead, the facts alleged in the Amended Complaint suggest that the defendant officers were responding to Heenan's attempts to cross the line of PPMW escorts outside of the facility and the alleged assault of Heenan by a PPMW employee. Accordingly, the Court will GRANT defendants' motion to dismiss Count I of the Amended Complaint as, to the individual defendants.

2. First Amendment Claims

In Counts II and III of the Amended Complaint, Heenan alleges that the defendant officers violated his First Amendment rights when Officer Ashby assaulted him and when Ashby and the other officers: 1) failed to arrest Harry James; 2) barred him from protesting within 20 feet of the facility; and 3) failed to control pro-choice demonstrators. Defendants have moved to dismiss Heenan's claims arguing that the facts do not support plaintiffs claims of a First Amendment violation. The Court agrees.

First, Heenan has alleged that the MPD officers failed to "enforce laws designed to protect his physical safety" when they failed to take action against the PPMW employee who allegedly assaulted him. Plaintiff concedes, however, that the defendant officers filed a complaint against Mr. James after the alleged assault. Although the MPD officers declined to arrest Mr. James, the discretion to arrest or decline to arrest a suspect is firmly vested in the individual officer on the scene. See Morgan v. District of Columbia, 468 A.2d 1306 (D.C.1983). Moreover, our Circuit has held that absent a "special relationship" between the police officer and the citizen (one different from that existing between police and citizens generally), no particularized "duty to protect" a citizen renders an officer liable for his failure to take a certain action. Martin v. Malhoyt, 830 F.2d 237, 259 (D.C.Cir.1987); Morgan, 468 A.2d 1306. Accordingly, the defendant officers' refusal to arrest Mr. James does not constitute a violation of Heenan's First Amendment rights.

Second, Heenan alleges that his rights were infringed when the defendant officers barred him from protesting within 20 feet of the PPMW facility. Likewise, this restriction does not rise to the level of a constitutional violation.

Although a sidewalk is considered a traditional public forum, United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), the Supreme Court has held that the government may impose "regulations of the time, manner, and place of expression" on speech in public forums as long as the restrictions are contentneutral and "narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

Here, the Government clearly had a significant interest in controlling a potentially violent street protest (Heenan alleged that he was jostled and later assaulted when he attempted to, cross the line of pro-choice protestors) as well as ensuring that patients had access to Planned Parenthood facilities. Schenck v. Pro-Choice. Network of W. N.Y., 519 U.S. 357, 372, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), Madsen v. Women's Health Ctr., 512 U.S. 753, 770, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), U.S. v. Alaw, 327 F.3d 1217 (D.C.Cir.2003). Moreover, the establishment of the 20 foot buffer zone was narrowly tailored to serve those interests. Although Heenan was barred from protesting in the immediate vicinity of the facility, the content, timing and manner of his protest was not restrained. Additionally, as Heenan was able to continue protesting, the buffer zone clearly left Heenan ample means of continued communication. Accordingly, the Court finds that the establishment of a 20 foot buffer zone was not an unconstitutional restriction of plaintiffs First Amendment rights.

Moreover the plaintiff can not establish that the defendant officers infringed those rights when the MPD allegedly failed to control pro-choice demonstrators in July 2005. Although Heenan alleges that MPD was present at the protest, he does not allege that Officer Ashby, Leo or Lawrence were on the scene. As a result, Heenan cannot claim that the defendant officers' conduct somehow infringed his constitutional rights.

Finally, Heenan has asserted that Officer Ashby violated his First Amendment rights when he assaulted him on May 15, 2004. Although Officer Ashby's conduct, if true, might possibly constitute an assault, plaintiff has not alleged that this conduct significantly interfered with his protest outside of the PPMW facility. Heenan has not alleged that he left the protest after the alleged assault, nor that he curtailed his, later protests. Indeed, Heenan claims that he continued to...