McClam v. Barry
| Decision Date | 04 January 1983 |
| Docket Number | No. 81-1422,81-1422 |
| Citation | 697 F.2d 366,225 U.S. App. D.C. 124 |
| Parties | Claf McCLAM, Appellant, v. Mayor Marion BARRY, Municipality of the District of Columbia, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-02244).
William R. Robertson, Washington, D.C. (appointed by this Court), for appellant. Amanda B. Pedersen, Washington, D.C., was on the brief, for appellant.
Leo N. Gorman, Asst. Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Laura W. Bonn, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellees.
Before MIKVA and BORK, Circuit Judges, BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BORK.
Appellant Claf McClam filed a pro se complaint in this case on September 4, 1980. The complaint, which names nine defendants, alleges that (1) in February 1978, defendant Davis, an officer with the District of Columbia Metropolitan Police Department, seized appellant's automobile and, instead of depositing it in a police yard for impounded property, converted it to his personal use; (2) in May 1978, defendant Davis assaulted appellant without cause and broke his elbow; and (3) on June 14, 1979, defendant Davis, together with defendant Pyles, who was also a District of Columbia police officer, planted a gun on appellant, which resulted in his false arrest and imprisonment, and assaulted and threatened to kill him. The complaint does not allege facts suggesting misconduct by the other named defendants. Based on these three incidents, the complaint alleges both common-law and constitutional torts, the latter allegedly arising directly under the Constitution as Bivens-type actions, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The causes of action here accrued before 42 U.S.C. Sec. 1983 (1976) became applicable to the District of Columbia. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).
In response to the complaint, appellee District of Columbia moved for dismissal or summary judgment. 1 The district court dismissed all claims in the case. The court held that the common-law claims were barred by appellant's failure to comply with D.C.Code Sec. 12-309 (1981), which requires written notice to the District of personal-injury or property-damage claims within six months of the injury or damage. The court dismissed the constitutional-tort claims on the ground that they were barred by the applicable one-year District of Columbia statute of limitations, D.C.Code Sec. 12-301(4) (1981). This court subsequently affirmed the decision "as to all claims except those based on constitutional torts." Record at 14. In this appeal, the principal, though not the only, issue is whether the district court correctly dismissed the constitutional-tort claims by applying the one-year statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.
To clarify what issues are presented for decision and what issues remain on remand, it is necessary to discuss who the parties are, a subject that is somewhat confused at this stage. The district court observed that only three of the nine named defendants were served with process, and the court treated the three served defendants as out of the case. It substituted the District of Columbia for two of them (Mayor Barry and Police Chief Jefferson) and remarked that "plaintiff makes no allegations of misconduct by" the third (Officer Gallup). Record at 8 n. 4. The court's reliance, in dismissing the common-law tort claims, on D.C.Code Sec. 12-309, which applies only to the District, presupposes that only the District, and none of the named defendants, remained as a party.
At the time we affirmed the decision below on the common-law claims, we were not presented with a serious question about the district court's treatment of the parties. That ruling should be understood as having been made on the assumption that only the District of Columbia was a defendant. We simply did not consider whether other defendants properly remained in the case.
Addressing the issue for the first time, we agree with appellant that the validity of service is not now before us. Brief of Appellant at 2 n. 1. Invalid service is a ground for dismissal, Fed.R.Civ.P. 12(b)(5); Peterson v. Sheran, 635 F.2d 1335, 1337 (8th Cir.1980), but the record is unclear on the validity of the service in this case. On remand, the district court should address the issue. If the district court concludes that service was valid, it must consider both the constitutional and the common-law claims that remain, but D.C.Code Sec. 12-309, which applies only to the District of Columbia, is no ground for dismissal against any other defendant. For purposes of this appeal, we assume without deciding that failure of service has not removed defendants Davis, Pyles, Wright, Andres, Everett, and Jacobs from the case.
Appellees argue that the cases against Mayor Barry, Police Chief Jefferson, and Officer Gallup were properly dismissed because the complaint alleges no misconduct on the part of these defendants, who, they correctly observe, as co-employees of Officers Davis and Pyles, cannot be liable on a theory of respondeat superior. Tarpley v. Greene, 684 F.2d 1 (D.C.Cir.1982). Indeed, appellees contend that the same argument warrants dismissal of the cases against all of the defendants except Officers Davis and Pyles. Appellees are correct in stating that the complaint alleges no wrongdoing whatever on the part of anyone but Officers Davis and Pyles and thus fails to state a cause of action against any other defendant. The complaint fails to meet the fundamental requirement of notice pleading, to put each defendant on notice of the alleged wrong for which the plaintiff seeks relief. See Fed.R.Civ.P. 8; 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1202, at 59-66 (1969). This failure, however, does not justify dismissal at this juncture. Plaintiff filed his complaint pro se; he should be given an opportunity to make his general allegations more specific by pointing to some actionable misconduct on the part of defendants other than Officers Davis and Pyles, if there was any, in the incidents described in the complaint. If no defendant would be prejudiced thereby, the district court should allow the filing of the more specific, amended complaint. See Fed.R.Civ.P. 15; Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Wyant v. Crittenden, 113 F.2d 170, 175 (D.C.Cir.1940); Gutierrez v. Vergari, 499 F.Supp. 1040 (S.D.N.Y.1980).
The case against the District of Columbia, however, should be dismissed because of appellant's failure to comply with D.C.Code Sec. 12-309. That section provides:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Commissioner [Mayor] of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.
The district court held that this section barred appellant's common-law claims against the District, no adequate notice having been given to the Mayor. This court affirmed that holding. As appellant gave no notice of his constitutional claims to the District, those claims against the District are barred if this notice provision applies to Bivens-type suits. For the reasons set out below, we hold that it does.
This court has previously stated, even if it has not squarely held, that the provision applies to a constitutional cause of action. In Marshall v. District of Columbia Government, 559 F.2d 726 (D.C.Cir.1977), the court remanded the case for the district court to consider whether the jurisdictional amount requirement of 28 U.S.C. Sec. 1331(a) (1976) applied to bar the plaintiff's claim that discrimination against him on the basis of his status as an adjudicated bankrupt violated the Constitution. The court pointed out that, even if the claim were not barred by the jurisdictional amount requirement, the claim might nonetheless be barred because 559 F.2d at 730. Thus, this court has already rejected the holding in Lively v. Cullinane, 451 F.Supp. 999, 1000 (D.D.C.1976)--the one case relied on by appellant--that D.C.Code Sec. 12-309 applies only to common-law and not to constitutional claims. In Dellums v. Powell, 566 F.2d 216 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), moreover, this court devoted three pages to discussing whether, in a Bivens-type class action, a single notice by the class counsel sufficed to discharge the "statutory notice requirements of 12 D.C.Code Sec. 309" for all the class members. Id. at 228-30. That entire discussion was pointless unless the local law applies to constitutional-tort claims, and the court nowhere suggested that applicability of the provision was merely assumed for purposes of the case.
Although those cases effectively foreclose the issue, we think it worth mentioning several considerations that independently support the view that section 12-309 applies to constitutional claims. First, the language of the provision is unquestionably broad; it cannot be read to contain even a hint that it applies only to common-law claims. In addition, constitutional claims clearly come within the purposes of the provision, which are, "primarily, to provide the...
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