Brookens v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

BENOIT BROOKENS, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 12-502 (RWR)

)

UNITED STATES OF AMERICA, )

et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiffs Benoit Brookens and Mary Todd filed this action

asserting claims under 42 U.S.C. § 1983 and the common law

against the District of Columbia, the United States Attorney for

the District of Columbia and numerous other defendants in

connection with Brookens’s arrest and prosecution for criminal

contempt for violating an order that prohibited Brookens from

practicing law or holding himself out as a lawyer in the District

of Columbia. The District of Columbia and the named federal

defendants move to dismiss the complaint. Because the plaintiffs

have failed to address the federal movants’ arguments and the

complaint fails to state a claim for which relief can be granted

against the District of Columbia, the defendants’ motions will be

granted and the complaint will be dismissed against all federal

defendants and the District of Columbia. Because the plaintiffs

have demonstrated no good cause to extend time to serve defendant

Judge Butler, he will be dismissed as a defendant.

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BACKGROUND

In 1984, Brookens was a resident of the District of

Columbia. He was a member of the bars of the States of Wisconsin

and Pennsylvania, but he was not a member of the District of

Columbia Bar. That year, Brookens filed a tenant petition with

the Office of the D.C. Rent Administrator on behalf of himself

and other tenants in the apartment building in which he lived.

Compl. ¶ 25. The Rent Administrator awarded Brookens $10,000 in

damages, awarded the class over one million dollars in rent

overcharges and ordered that the tenants were entitled to rent

reductions. Id. ¶¶ 26-27. In 1986, Brookens was found to have

engaged in the unauthorized practice of law in other matters

while he was not an admitted member of the D.C. bar. See

Brookens v. Comm. on Unauthorized Practice of Law, 538 A.2d 1120

(D.C. 1988). Brookens was prohibited from

(1) representing any person other than himself, or any

corporation, association, partnership, organization, or

other entity, in any court in the District of Columbia

unless he is a member of the bar of the court in which

such representation takes place;

(2) using such terms as “lawyer,” “attorney,”

“counsel,” “counselor” or “counsellor,” “Esq.,” or

“Esquire” to refer to himself in such manner as to

convey the impression that he is entitled or authorized

to practice law in the District of Columbia, or in any

way holding himself out as authorized or qualified to

practice law in the District of Columbia;

(3) engaging in any manner in the practice of law in

the District of Columbia, as that term is defined in

Rule 49(b)(3) of the General Rules of this court; and

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(4) engaging in any other conduct prohibited by Rule

49(b)(2) of the General Rules[.]

Brookens, 538 A.2d at 1122 n.6. In 2010 Brookens was arrested

and charged with 19 counts of criminal contempt for violating

these prohibitions and engaging in the unauthorized practice of

law. The government went forward on four of the counts. Compl.

¶ 35; Fed. Defs.’ Mem. in Supp. of Mot. to Dismiss (“Fed. Defs.’

Mem.”), Ex. 1 at 1. The matter was assigned to Superior Court

Judge Lopez,1 who conducted a bench trial. Defendants Assistant

United States Attorney Cynthia Wright, the chair of the Committee

on the Unauthorized Practice of Law (the “Committee”), and

Theodore Metzler, a Committee member, prosecuted the case. In

May 2012, Judge Lopez issued an opinion finding Brookens guilty

of four counts of misdemeanor criminal contempt of court for

engaging in the unauthorized practice of law. Fed. Defs.’ Mem.

at 4; see also United States v. Brookens, No. 2011-CCC-10 (D.C.

Super. Ct. filed May 20, 2012).

The plaintiffs filed this 12-count action in May 2012, based

on the events surrounding Brookens’ prosecution. The complaint

alleges that the District of Columbia, District of Columbia Bar,

Wright, Metzler and his law firm Covington & Burling LLP, and

Administrative Law Judges Tyrone Butler and Jennifer Long acted

1

The caption of the plaintiffs’ complaint in this case does

not list Judge Lopez as a defendant, but the text of the

complaint purports to identify him as a party defendant. See

e.g., Compl. ¶¶ 11, 328.

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under the color of state law to violate the plaintiffs’ right to

equal protection by preventing Brookens from representing low-

income residents in administrative proceedings (First Cause of

Action), Compl. ¶¶ 36-90; that the District, Wright, Covington &

Burling, Metzler, Judge Butler and Judge Long acted under the

color of state law to violate Todd’s rights under the First

Amendment by detaining her for associating with Brookens, and

that they committed common law torts by maliciously prosecuting

Brookens and intentionally inflicting emotional distress on him

(Second, Third and Eighth Causes of Action), id. ¶¶ 91-155, 245-

264; that all defendants acted under the color of state law to

violate Brookens’ Fourth Amendment right to be free from

unreasonable searches and seizures (Fourth Cause of Action), id.

¶¶ 156-228; that Brookens was falsely arrested and denied a

speedy jury trial (Fifth Cause of Action), id. ¶¶ 229-235; that

the unidentified Marshals, unidentified MPD officers and Neumann

assaulted and battered Brookens and Todd (Sixth and Seventh

Causes of Action), id. ¶¶ 236-244; that Wright defamed Brookens

(Ninth Cause of Action), id. ¶¶ 265-277; and finally that the

District, the United States, the United States Attorney, and

Assistant United States Attorney Jeffrey Ragsdale negligently

failed to train and properly supervise the prosecutors who

participated in the criminal action (Eleventh and Twelfth Causes

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of Action), id. ¶¶ 286-325.2 The complaint sought an order

enjoining Metzler and Wright from criminally prosecuting

Brookens, id. ¶¶ 326-27, an order “[t]hat the prosecution” of

Brookens by Wright and Metzler “violates the U.S. Constitution,”

$3,000,000 in compensatory damages, punitive damages, costs and

attorneys’ fees, id. at 50. Metzler, Covington & Burling, the

District of Columbia Bar, and Judge Long filed motions to dismiss

that were granted as conceded.3 The District of Columbia and the

2

The complaint mislabels a request for “aggravated damages”

as cause of action. Compl. ¶¶ 278-285 (“Tenth Cause of Action”).

3

Plaintiffs moved for reconsideration of this court’s order

granting as conceded the motions to dismiss the complaint against

Metzler, Covington & Burling, and the District of Columbia Bar,

arguing that they had met an “excusable neglect” standard

justifying the relief sought. But, Rule 54(b) governs motions

for reconsideration of interlocutory decisions, Scott v. Dist. of

Columbia, 246 F.R.D. 49, 51 (D.D.C. 2007) (citing Cobell v.

Norton, 224 F.R.D. 266, 271 (D.D.C. 2004)), which may be revised

“at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities[,]” Fed. R.

Civ. P. 54(b). Under Rule 54, a court may reconsider an

interlocutory decision “as justice requires.” Capitol Sprinkler

Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C.

Cir. 2011) (internal citation and quotation marks omitted).

Under this standard, reconsideration may be warranted where the

court has “‘patently misunderstood the parties, made a decision

beyond the adversarial issues presented, made an error in failing

to consider controlling decisions or data, or [where] a

controlling or significant change in the law has occurred.’”

Arias v. DynCorp, 856 F. Supp. 2d 46, 52 (D.D.C. 2012) (quoting

Negley v. F.B.I., 825 F. Supp. 2d 58, 60 (D.D.C. 2011)).

The plaintiffs’ motion was denied, as plaintiffs had neither

demonstrated excusable neglect nor shown that justice required

vacating the order. Plaintiff Brookens made a conscious decision

against filing an opposition to the motions to dismiss. One of

his two co-counsel disagreed with that choice, yet both counsel

elected to file nothing. That choice was neither neglect nor

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named federal defendants have now moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6), and,

in the alternative, for summary judgment under Rule 56.4

DISCUSSION

Rule 12(b)(1) provides that a federal court must dismiss a

case when it lacks subject matter jurisdiction. Fed. R. Civ. P.

12(b)(1). Generally, “‘[b]efore a court may address the merits

of a complaint, it must assure that it has jurisdiction to

entertain the claims.’” Cornish v. Dudas, 715 F. Supp. 2d 56, 60

(D.D.C. 2010) (quoting Marshall v. Honeywell Tech. Solutions,

Inc., 675 F. Supp. 2d 22, 24 (D.D.C. 2009)). It is the

plaintiff’s burden to demonstrate subject matter jurisdiction.

Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If

the plaintiff cannot meet her burden, the court must dismiss the

action. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

94 (1998) (citing Ex parte McCardle, 74 U.S. 506 (1868)). In

considering a motion to dismiss for lack of subject matter

excusable neglect. Nor did the dismissal result from the court

patently misunderstanding the parties, making a decision beyond

the issues presented, failing to consider controlling decisions

or data, or ruling before a significant change in the law had

occurred.

4

After the federal defendants filed their dispositive

motion, the plaintiffs late filed a motion for an extension of

time to respond to the federal defendants’ motion. Later, the

plaintiffs filed a motion for leave to file an opposition to the

federal defendants’ motion to dismiss that contained a proposed

opposition. Both motions for leave to file oppositions will be

granted.

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jurisdiction, a court “‘treat[s] the complaint’s factual

allegations as true’” and “‘grant[s] plaintiff ‘the benefit of

all inferences that can be derived from the facts alleged.’”

Nat’l Whistleblower Ctr. v. Department of Health and Human

Services, 839 F. Supp. 2d 40, 44 (D.D.C. 2012) (quoting Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

(internal quotation omitted)). However, “[b]ecause subject

matter jurisdiction focuses on the court’s power to hear the

claim, . . . the court must give the plaintiff’s factual

allegations closer scrutiny when resolving a Rule 12(b)(1) motion

than would be required for a Rule 12(b)(6) motion[.]” Aref v.

Holder, 774 F. Supp. 2d 147, 159 (D.D.C. 2011).

“‘A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be

granted.’” Howard Univ. v. Watkins, 857 F. Supp. 2d 67, 71

(D.D.C. 2012) (quoting Peavey v. Holder, 657 F. Supp. 2d 180, 185

(D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6))). Motions to

dismiss under Rule 12(b)(6) test the legal sufficiency of a

complaint. Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d

123, 129 (D.D.C. 2009).

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, acceptable as true,

to “state a claim to relief that is plausible on its

face.” . . . A claim has facial plausibility when the

plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is

liable for the misconduct alleged.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

“The complaint must be construed in the light most favorable to

the plaintiff and ‘the court must assume the truth of all

well-pleaded allegations.’” Watkins, 857 F. Supp. 2d at 71

(quoting Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir.

2004)). “[A] complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations[.]” Twombly,

550 U.S. at 555. However, “[w]here a complaint pleads facts that

are ‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of

entitlement to relief.’” Iqbal, 556 U.S. at 662 (quoting

Twombly, 550 U.S. at 557.

A motion under Rule 12(b)(5) to dismiss for failure to

properly serve process may be granted when a plaintiff fails to

“demonstrate that the procedure employed satisfied the

requirements of Rule 4 and any other applicable provision of

law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). After

a motion to dismiss under 12(b)(5) is filed, the plaintiff is

obligated to establish that he has properly effected service.

Strong-Fischer v. Peters, 554 F. Supp. 2d 19, 23 (D.D.C. 2008)

(citation omitted).

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I. FEDERAL DEFENDANTS

The federal defendants argue that the claims alleged against

the individual federal defendants in their individual capacities

should be dismissed because the plaintiffs failed to properly

serve them, Fed. Defs.’ Mem. in Supp. of Mot. to Dismiss or for

Summ. J. (“Fed. Defs.’ Mem.”) at 14-15, and that the claims

alleged against them under 42 U.S.C. § 1983 in the First, Second,

Fourth, Eleventh, and Twelfth causes of action should be

dismissed because § 1983 does not apply to federal employees

acting under the color of law, Fed. Defs.’ Mem. at 10-12; see

also Settles v. United States Parole Comm’n, 429 F.3d 1098, 1104

(D.C. Cir. 2005). The federal defendants further argue that all

claims for damages against them should be dismissed because civil

plaintiffs may not bring claims for damages against the United

States government for damages arising out of a criminal

conviction unless the plaintiff can show that the criminal

conviction or concomitant sentence has been reversed on direct

appeal, expunged, declared invalid by a state tribunal, or called

into question by a federal writ of habeas corpus. Fed. Defs.’

Mem. in Supp. of Mot. to Dismiss (“Fed. Defs.’ Mem.”) at 9-10;

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); accord White v.

Bowie, 194 F.3d 175, 176 (D.C. Cir. 1999). The federal

defendants also argue that the plaintiffs’s remaining common law

tort claims against the federal defendants should be dismissed

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because the complaint fails to identify a valid waiver of

sovereign immunity, because the plaintiffs failed to exhaust

their administrative remedies, and because the intentional tort

exception to the Federal Tort Claims Act bars claims of assault

and battery as a matter of law. Fed. Defs.’ Mem. at 12-14, 19.

The plaintiffs concede that the individual federal

defendants have not been properly served, Pls.’ Opp’n to (Fed.)

Defs.’ Mot. to Dismiss at 3-5, and ask for more time to

effectuate proper service of process, id. at 4-5. However, the

plaintiffs offer no reason or good cause for their failure to

properly serve these individual defendants in the time allowed by

the rules.5 Moreover, the plaintiffs offer no intelligible

response to the federal defendants’ substantive arguments, other

than by stating:

Defendant Wright, in cooperation with private

attorney Metzler, cannot claim immunity--as acting

within the scope of their duties as members of the D.C.

Government Unauthorized Committee—and simultaneously

claim immunity as acting—with the scope of her federal

position—in the “Homicide Division” of the U.S. Office

of the Attorney General for the District of Columbia.

Defendant Jennifer Long cannot claim immunity for

actions in allegedly holding a hearing—and then taking

no further action against Mr. Brookens and provide the

same immunity to ALJ Butler who, as of record, has not

5

Nor does the docket reflect personal service upon Judge

Butler. While extending the service deadline is not uncommon, it

is done neither automatically nor as of right. A plaintiff must

still offer a reason or good cause for failing to serve process

timely. Plaintiffs here have offered neither, and the claims

against Judge Butler will be dismissed.

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responded to the lawsuit, had no relationship to the

proceedings before ALJ Long, in which Mr. Brookens

properly appeared, in 1984, and entered his appearance

on the hearing record.

Plaintiffs, pursuant to FRCP 56, are required to

be afforded an opportunity to respond to the defenses

raised by a properly prepared Motion for Summary

Judgment –- with supporting documentation and

affidavits and a Statement of Material Issues of Fact

Not in Dispute -- from the affected defendants, Long

and Butler represented by D.C. government or private

counsel, and Federal defendants Ragsdale, Wright, and

Neuman in their motions.

Pls.’ Opp’n at 9. Even a charitable reading of the plaintiffs’

opposition yields nothing that addresses the federal defendants’

arguments regarding Heck or the lack of waiver of sovereign

immunity. “‘Where a plaintiff [does not address] some

. . . arguments raised in a defendant’s motion to dismiss, courts

in this district may treat such arguments as conceded.’”

Matthews v. Dist. of Columbia, 730 F. Supp. 2d 33, 39 (D.D.C.

2010) (quoting Payne v. Dist. of Columbia, 592 F. Supp. 2d 29, 37

(D.D.C. 2008); see also Magliore v. Brooks, 844 F. Supp. 2d 38,

43 (D.D.C. 2012) (citing CSX Transp., Inc. v. Commercial Union

Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Maib v.

F.D.I.C., 771 F. Supp. 2d 14, 20 (D.D.C. 2011); Felter v.

Salazar, 679 F. Supp. 2d 1, at 4 n.2 (D.D.C. 2010)); City of

Waukesha v. E.P.A., 320 F.3d 228, 254 (D.C. Cir. 2003) (stating

that courts need not address “asserted but unanalyzed

contention[s]”). Therefore, the federal defendants’ motion will

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be granted, and all the claims against all the federal defendants

will be dismissed.

II. CLAIMS AGAINST THE DISTRICT

The District argues that the claims against it should be

dismissed because the complaint fails to plead sufficient facts

to support municipal liability for the plaintiffs’ constitutional

claims or for the common law claims, because the Fourteenth

Amendment does not apply to the District, and finally because the

plaintiffs failed to provide timely and proper notice of their

assault and battery claims under D.C. Code § 12-309. Dist.’s

Mot. to Dismiss at 1.

A. Claims under 42 U.S.C. § 1983

The First Cause of Action alleges that the District

defendants violated Brookens’ right to equal protection under the

Fifth and Fourteenth Amendments to the U.S. Constitution by

prosecuting him for the unauthorized practice of law. Compl.

¶¶ 36-90. The complaint alleges that the District, the

Committee, and the D.C. Bar had a “goal” of “allow[ing] . . .

predominantly white” law firms to “control pro bono

representation in the District for their benefit,” which had a

“disparate impact” on the “income of solo African-American

practitioners and predominantly African-American law firms.”

Compl. ¶¶ 40-42. The Second Cause of Action alleges that the

defendants violated Brookens right to free speech by denying him

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the ability to practice law - - specifically, by representing

tenants in landlord-tenant disputes - - without a license in the

District, and that defendant Neumann denied Todd’s right to free

speech by detaining her and forcing her to state what type of law

she practiced and where she lived. Id. ¶¶ 91-103. The Fourth

Cause of Action alleges that all of the defendants violated

Brookens Fourth Amendment right to be free of unreasonable

searches and seizures when federal marshals and unnamed MPD

officers searched Brookens’ residence. Id. ¶¶ 156-228. The

Eleventh and Twelfth Causes of Action allege that Ragsdale failed

to properly supervise or train Wright and Metzler to prevent them

from violating the plaintiffs’ constitutional rights, and that

the District was aware of Ragsdale’s failure to properly train

them because the District negligently supervised the Unauthorized

Practice Committee. Id. §§ 286-328.

Section 1983 provides a cause of action for a deprivation of

constitutional or federal statutory rights “under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia.” 42 U.S.C. § 1983. “In

order to hold a municipality liable for civil rights violations

of its employees under 42 U.S.C. § 1983, the municipality must

have acted in accordance with a ‘government policy or custom,

whether made by its lawmakers or those whose edicts or acts may

fairly be said to represent official policy.’” Sanders v. Dist.

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of Columbia, 522 F. Supp. 2d 83, 88 (D.D.C. 2007) (quoting Monell

v. Dep’t of Social Servs. of the City of N.Y., 436 U.S. 658, 694

(1978)). “To impose liability on the District under 42 U.S.C.

§ 1983,” a plaintiff "must show not only a violation of his

rights under the Constitution or federal law, but also that the

[District’s] custom or policy caused the violation.” Feirson v.

Dist. of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007) (internal

quotation marks and citation omitted). “It is the plaintiff's

burden to plead the existence of a municipal policy, custom or

practice that violated his federal constitutional or statutory

rights.” Jones v. Dist. of Columbia, Civil Action No. 11-275

(BAH), 2011 WL 2222354, at *3 (D.D.C. June 3, 2011). Thus, “[a]

single incident is insufficient to impose liability against the

District of Columbia.” Reed v. Dist. of Columbia, 474 F. Supp.

2d 163, 168 (D.D.C. 2007). “The policy or custom must be

pervasive to support municipal liability[.]” Sanders, 522 F.

Supp. 2d at 88 (dismissing the plaintiff’s § 1983 claim that the

District violated his First Amendment right to free speech by

retaliating against him because the plaintiff failed to point “to

any other employee who suffered similar retaliation”); see also

DuBerry v. Dist. of Columbia, 582 F. Supp. 2d 27, 39 (D.D.C.

2008) (entering judgment in favor of the District where the

plaintiff had “not produced any evidence that the [District’s]

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alleged discriminatory employment practices impacted a single

employee or prospective employee other than himself”).

The Supreme Court has held that the Fifth Amendment’s due

process clause encompasses equal protection claims against the

District of Columbia. Bolling v. Sharpe, 347 U.S. 497, 498-500

(1954). To succeed on an equal protection claim, a plaintiff

must show that “[he] has been intentionally treated differently

from others similarly situated and that there is no rational

basis for the difference in treatment.” Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000). “Where the claim is

invidious discrimination in contravention of the . . . Fifth

Amendment[],. . . the plaintiff must plead and prove that the

defendant acted with discriminatory purpose . . . on account of

race, religion, or national origin.” Iqbal, 556 U.S. at 676-77

(citations omitted).

As an initial matter, “[t]he Fourteenth Amendment applies

only to states and not to the District [of Columbia,]” see Person

v. Dist. of Columbia, 642 F. Supp. 2d 24, 28 (D.D.C. 2009), so

the First Cause of Action will be dismissed against the District

defendants to the extent it alleges a claim under the Fourteenth

Amendment. As for the claims under the First, Fourth and Fifth

Amendment, the plaintiffs argue that “[t]here are . . . no

heightened pleading requirements required of Plaintiff and . . .

the D.C. Government has argue[d] that the policy and practice

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aspects of this issue have been delegated to a[] subordinate

organization.” Pl.’s Opp’n to Dist.’s Mot. to Dismiss at 13.

However, the plaintiffs rely solely on the events surrounding the

prosecution of Brookens as evidence of a municipal policy or

custom, and they have not pled facts plausibly alleging that the

arrest and prosecution of Brookens establishes that there was a

municipal policy orchestrated through multiple actors,

culminating in the prosecution of Brookens for the improper

practice of law, to steer pro bono work away from predominantly

African-American law firms, to infringe Brookens’ right to free

speech, or to infringe Brookens’ or Todd’s rights to be free from

unreasonable searches and seizures. Additionally, the plaintiffs

plead simply no connection between the prosecution of a person

illegally practicing law without a license in the District and

the alleged policy of steering pro bono work to white law firms.

Brookens was not a solo practitioner of law in the District; he

was not licensed to practice law here. The plaintiffs make broad

assertions such as “[b]oth the District of Columbia Bar

Association and the committee on the Unauthorized Practice of Law

has [sic] used its power and influence in the political arena to

allow predominately white law firms to monopolize and control the

Administrative Agencies rent control areas and pro bono services

provided in the District of Columbia,” Compl. ¶ 44, but plead no

facts to develop the allegation into a facially plausible claim.

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Additionally, the plaintiffs have not pled specific examples of

similarly situated out-of-district attorneys who were treated

differently than Brookens was treated. Courts “need not accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint.” Kowal v. MCI

Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A

complaint that does not sufficiently allege harm caused by a

municipality's policy or custom “fails to allege a necessary

element of liability under § 1983, and that claim must be

dismissed.” Hawkins v. Lanier, 605 F. Supp. 2d 291, 295 (D.D.C.

2009). Therefore, the First, Second, Fourth, Eleventh, and

Twelfth Causes of Action will be dismissed against the District

in their entirety.

B. Common Law Claims

The District argues that Brookens fails to state a claim of

malicious prosecution because he has failed to plead an essential

element of such a claim - - that the prosecution terminated in

his favor. A successfully pled claim of malicious prosecution

requires such an allegation. See Dormu v. Dist. of Columbia, 795

F. Supp. 2d 7, 32 (D.D.C. 2011). The complaint lacks such an

allegation. Thus, the malicious prosecution claim will be

dismissed.

The District also argues that the plaintiff’s common law

claims in the Fifth, Sixth, Seventh, Eighth and Ninth causes of

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action should be dismissed for lack of jurisdiction because,

among other reasons, the plaintiffs failed to comply with D.C.

Code § 12-309’s requirement to provide adequate notice to the

District. Dist.’s Mem. at 17-18. Under that provision,

[a]n 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, [her] agent, or

attorney has given notice in writing to the Mayor of

the District of Columbia of the approximate time,

place, cause, and circumstances of the injury or

damage.

D.C. Code § 12-309. The notification requirement is strictly

applied, and the provision is “‘construed narrowly’” against

claimants. Snowder v. Dist. of Columbia, 949 A.2d 590, 600 (D.C.

2008) (quoting Gross v. Dist. of Columbia, 734 A.2d 1077, 1081

(D.C. 1999)); Dist. of Columbia v. Dunmore, 662 A.2d 1356 (D.C.

1995). "Only two types of notice can satisfy the requirements of

Section 12-309, however: (1) a written notice to the Mayor of the

District of Columbia, or (2) a police report prepared in the

regular course of duty.” Blocker-Burnette v. Dist. of Columbia,

730 F. Supp. 2d 200, 204 (D.D.C. 2010) (citing Brown v. Dist. of

Columbia, 251 F. Supp. 2d 152, 165 (D.D.C. 2003)). “Notice of

one type of injury . . . is not notice of another type of injury

incurred in the same incident.” Breen v. Dist. of Columbia, 400

A.2d 1058, 1062 (D.C. 1979); see also Washington v. Dist. of

Columbia, 429 A.2d 1362, 1366 (D.C. 1981).

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According to the District, the plaintiffs timely sent the

Mayor a notice of claim letter, but the letter did not notify the

Mayor of the plaintiffs’ claims for assault and battery,

intentional infliction of emotional distress, or defamation of

character. Dist.'s Mem. at 17-18. Neither of the plaintiffs’

opposition briefs addresses this argument squarely, and therefore

the plaintiffs have conceded it. Those common law claims will be

dismissed as to the District. See Magliore, 844 F. Supp. 2d at43

(D.D.C. 2012); Maib 771 F. Supp. 2d at 20; Felter, 679 F. Supp.

2d at 4 n.2.

CONCLUSION AND ORDER

The plaintiffs have failed to respond to the federal

defendants’ arguments that the claims against them are barred by

the Heck v. Humphrey doctrine, that the complaint fails to allege

a waiver of sovereign immunity, and that the complaint fails to

allege claims against the individual federal defendants in their

individual capacities. The complaint fails to allege that the

plaintiffs were harmed by a custom or policy of the District of

Columbia or that Brookens’ prosecution ended favorably to him,

and the plaintiffs failed to provide notice to the District of

their other common law claims. In addition, the plaintiffs have

not demonstrated that they have served the complaint on Judge

Butler or that there was a reason or good cause for not doing so.

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Therefore, it is hereby

ORDERED that the plaintiffs’ motions [17, 20] for an

extension and for leave to file be, and hereby are, GRANTED. It

is further

ORDERED that the federal defendants’ motion [16] to dismiss

be, and hereby is, GRANTED as effectively conceded, and all

claims against all federal defendants are dismissed. It is

further

ORDERED that the District’s motion [8] to dismiss be, and

hereby is, GRANTED, and both the District and Judge Butler are

dismissed as defendants. The sole remaining claims are those

alleged against the individual MPD Officers in the Fourth, Sixth,

and Seventh Causes of Action.

SIGNED this 7th day of October, 2013.

/s/

RICHARD W. ROBERTS

Chief Judge