Dickey v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

MICHAEL DICKEY, )

)

Plaintiff, )

) Civil Action No.15-0577

) (EGS)

v. )

)

UNITED STATES OF )

AMERICA, ET AL., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

On July 1, 2013, Plaintiff Michael Dickey (“Mr. Dickey”),

an employee of the U.S. Department of Transportation (“DOT”),

drove his car into the DOT’s parking garage at 1200 New Jersey

Ave. SE, Washington, D.C. Compl., Docket No. 1 at ¶ 6. Mr.

Dickey alleges that a bicyclist was in his blind spot as he

pulled into his parking spot. Id. at ¶ 7. The cyclist was forced

to stop abruptly. Id. Mr. Dickey and the cyclist engaged in an

altercation, causing Defendant Kurt Alexander (“Officer

Alexander”), a Federal Protective Services officer, and his

partner, Gary Brzozwald, an inspector, to arrive at the scene.

Id. at ¶ 8. After interviews with the altercating parties, Mr.

Dickey was placed under arrest for simple assault. Id. ¶ 9-12.

During his arrest, Mr. Dickey alleges that Officer Alexander

pushed and pulled him, tearing one of the belt loops on his

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pants. Id. ¶ 12. Mr. Dickey further alleges that Officer

Alexander “used his fingers to manipulate and move Mr. Dickey’s

genitals and penis . . . .” Id. ¶ 13. Mr. Dickey alleges that

his genitals and penis were “fondled” six times by Officer

Alexander during his search of Mr. Dickey incident to arrest,

three times when Officer Alexander used kevlar gloves, and three

times when Officer Alexander used latex gloves. Id. at ¶ 21-23.

Mr. Dickey alleges two counts against the United States and

Officer Alexander in his individual capacity: excessive force

and unreasonable search and seizure in violation of the Fourth

Amendment (Count I); and assault, battery and intentional

infliction of emotional distress under the Federal Tort Claims

Act (“FTCA”) (Count II). Id. at ¶¶ 24-39. Defendants move to

dismiss Mr. Dickey’s complaint for lack of subject matter

jurisdiction and failure to state a claim. Defs.’ Mem. Supp.

Mot. Dismiss, Docket No. 7-1. 1 Upon consideration of the motion,

the response and reply thereto, the applicable law, and the

entire record, Defendants’ Motion is GRANTED in part and DENIED

1 The basis for Defendants’ Motion to Dismiss for Lack of Subject

Matter Jurisdiction under Rule 12(b)(1) is that “the search of

Plaintiff during his arrest [was] a legally authorized touching

and the Supreme Court has determined that a search incident to

arrest is an authorized warrantless search under the Fourth

Amendment and is reasonable under that same Amendment.” Defs.’

Mem. Supp., Docket No. 7 at 4. Because this argument goes to the

merits of Mr. Dickey’s claims, the Court’s analysis is limited

to Defendants Motion to Dismiss for failure to state a claim

under Rule 12(b)(6).

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in part.

I. Standard of Review

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). The pleading must

contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading

standard does not require detailed factual allegations, but

should be “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 678. Naked assertions without

factual enhancements or formulaic recitations of the elements of

a cause of action will not suffice. Id. Rather, to survive a

motion to dismiss, a complaint “must contain sufficient factual

matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. Plausibility entails that the plaintiff has pled

factual content that is not merely consistent with liability but

allows the Court to draw a reasonable inference that the

defendant is liable for the alleged misconduct. Id.

In considering a 12(b)(6) motion, the Court should liberally

view the complaint in the plaintiff’s favor, accepting all

factual allegations as true, and giving the plaintiff the

benefit of all inferences that can be drawn therefrom. Redding

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v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal

v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

II. Analysis

A. The Qualified Immunity Doctrine

A plaintiff may bring suit against federal officials in

their individual capacity for alleged constitutional violations.

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 389 (1971). However, qualified immunity protects

government officials from civil liability where their conduct

does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24

(D.C. Cir. 2004). At the motion to dismiss stage, a plaintiff

must allege sufficient facts to establish that the defendants

are not entitled to qualified immunity. Patterson v. United

States, 999 F. Supp. 2d 300, 311 (D.D.C. 2013) (internal

citation omitted). The defendant bears the burden of pleading

and proving qualified immunity. Id.

As established by the Supreme Court, “the two pertinent

questions in determining whether qualified immunity applies are

(1) whether a constitutional right would have been violated on

the facts alleged; and (2) whether the right was clearly

established at the time of the violation.” Shaw v. District of

Columbia, Case No. 12-0538, 2013 WL 1943032, at *4 (D.D.C. May

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13, 2013) (quoting Saucier v. Katz, 533 U.S. 194 at 201 (2001)).

In sum, the facts alleged by a plaintiff must establish that the

official violated a right protected by the constitution, and

precedent must be sufficiently well established that a

reasonable officer would have understood prior to acting that

his conduct violates that right.

Here, both of Mr. Dickey’s alleged constitutional

violations——unreasonable search and excessive force——impinge on

the Fourth Amendment, which guarantees the right of the people

“to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . . .” U.S. Const.

amend. IV. Each alleged claim will be analyzed below.

i. The facts alleged by Mr. Dickey state a claim for

an unreasonable search in violation of his

clearly established rights under the Fourth

Amendment.

Officer Alexander argues that the search of Mr. Dickey was

permitted under the Fourth Amendment because it was incident to

his arrest. Defs.’ Mem. Supp., Docket No. 7 at 8-9. Mr. Dickey

argues that the circumstances of his arrest did not provide

Officer Alexander any basis to “perpetrate a sexual assault on

him” by manipulating his penis and genitalia six times. Pl.’s

Mem. Opp., Docket No. 9 at 8.

The Fourth Amendment generally requires that law

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enforcement have “probable cause for conducting a search.” U.S.

v. Scott, 987 A.2d 1180, 1195 (D.C. Cir. 2010). However, a

critical exception to this general rule are searches conducted

incident to arrest. Id. As explained by the Supreme Court:

The authority to search the person incident to a lawful

custodial arrest, while based upon the need to disarm

and to discover evidence, does not depend on what a court

may later decide was the probability in a particular

arrest situation that weapons or evidence would in fact

be found upon the person of the suspect. A custodial

arrest of a suspect based on probable cause is a

reasonable intrusion under the Fourth Amendment; that

intrusion being lawful, a search incident to the arrest

requires no additional justification.

United States v. Robinson, 414 U.S. 218, 235 (1973). Therefore,

reasonable suspicion that Mr. Dickey possessed a weapon or

illicit substances on his person was not necessary because

Officer Alexander had probable cause to arrest and search Mr.

Dickey for simple assault. See e.g. Pl.’s Mem. Opp., Docket No.

9 at 4, 8 and 10.

Nevertheless, where a search incident to arrest is

unusually intrusive, the search may be deemed unreasonable and

therefore in violation of the Fourth Amendment. WAYNE R. LAFAVE,

SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT 145, § 5.2(c)

(West’s Criminal Practice Series, 6th ed. 2010) (hereinafter

LAFAVE). In Bell v. Wolfish, the Supreme Court established an

analytical framework to determine the reasonableness of a

sexually intrusive search, holding courts must balance “the

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scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in

which it is conducted.” 441 U.S. 520 at 559 (1979); see also

Bame v. D.C., 637 F.3d 380, 387 (D.C. Cir. 2011) (internal

citations omitted); see also Grissom v. Dist. of Columbia, 853

F. Supp. 2d 118, 125 (D.D.C. 2012) (“The “unreasonableness”

inquiry is a particularized one, taking into account the facts

and circumstances of the particular case.”) (internal citations

omitted).

Under certain circumstances, strip searches have been found

unreasonable and in violation of the Fourth Amendment. For

example, in Campbell v. Miller, the Seventh Circuit concluded

that although a search was permissible, the officer’s decision

to conduct a strip search of a male suspected of possessing

marijuana was unreasonable because it was conducted in a

backyard where his neighbors could view the search. 499 F.3d 711

at 718. The Court concluded that the search was not reasonable

because it involved “public nudity and exposure of intimate body

parts.” Id. Indeed, courts throughout the country have routinely

condemned as unreasonable intrusive searches conducted in

public. See e.g. Amaechi v. West, 237 F.3d 356, 364 (4th Cir.

2001) (noting that “we have repeatedly emphasized the necessity

of conducting a strip search in private” and concluding that

“[t]he fact that, absent clear justification or exigent

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circumstances, an officer is not allowed to strip an arrestee on

a public street pursuant to a search incident to arrest

necessarily means that an officer cannot go even further than

simply disrobing the arrestee by actually touching and

penetrating the arrestee’s exposed genitalia on the public

street.”); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984)

(finding unconstitutional “routine strip searches in a public

area of persons detained for minor traffic offenses.”).

Here, Mr. Dickey alleges that the search was unreasonable

because Officer Alexander “searched and fondled Mr. Dickey’s

genitals and penis” and “intentionally humiliated Mr. Dickey by

searching his genital region six (6) separate times while in a

public parking garage while in the presence of both officers and

civilian bystanders who worked in the same building where Mr.

Dickey was employed.” Compl. ¶¶ 31, 33. The facts of this case

are notably distinguishable from the authority discussed above

because Mr. Dickey does not allege that he was stripped

searched. 2 Still, accepting all factual allegations as true and

2 In his opposition brief, Mr. Dickey argues that Officer

Alexander’s search was “extremely atypical” and best described

as a “manual body cavity search.” Pl.’s Mem. Opp. at 2, fn 1.

Mr. Dickey attempts to overstate his case. As discussed in

Roberts v. Rhode Island:

A “strip search,” though an umbrella term, generally

refers to an inspection of a naked individual, without

any scrutiny of the subject's body cavities. A

“visual body cavity search” extends to visual

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adopting a liberal view the complaint, the Court cannot conclude

that Officer Alexander’s search of Mr. Dickey’s was reasonable

under the Fourth Amendment. Officer Alexander was surely

entitled to pat Mr. Dickey down before taking him into custody. 3

However, it is not clear that under the circumstances, searching

Mr. Dickey a total of six times with two different sets of

gloves was necessary or reasonable. 4 More importantly, Mr. Dickey

alleges that his genitalia were fondled in such a way as to

constitute a “sexual assault.” Compl. 16. Based on these alleged

facts, Mr. Dickey has stated a claim for an unreasonable search

inspection of the anal and genital areas. A

“manual body cavity search” includes some degree of

touching or probing of body cavities.

175 F. Supp. 2d 176, 182, fn 5 (D.R.I. 2000). Therefore, the

alleged surface touching of genitalia during a pat-down

search incident to arrest that does not probe any body cavity

does not constitute a “manual body cavity search.”

3 In Terry v. Ohio, the Supreme Court noted that a frisk,

presumably less intrusive than a search incident to arrest,

includes “a thorough search of the prisoner’s arms and armpits,

waistline and back, the groin and area about the testicles, and

the entire surface of the legs down to the feet.” 392 U.S. 1 at

17, fn 13 (1968) (citing Priar & Martin, Searching and Disarming

Criminals, 45 J. Crim. L.C. & P.S. 481 (1954)).

4 Officer Alexander argues that the search was conducted within

his discretionary duties, and therefore permissible. Defs.’ Mem.

Supp. at 7. According to the Federal Protective Service (FPS)

Detention and Arrest Directive which states that a search

incident to arrest “should be as thorough as circumstances

allow.” Id., citing FPS Directive 15.5.2.3. Absent discovery

into the circumstances surrounding Mr. Dickey’s arrest, Officer

Alexander’s discretionary duty defense is not persuasive.

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under the Fourth Amendment. See Grissom 853 F. Supp. 2d at 125

(“Although it is a close question . . . the Court cannot find as

a matter of law that the search was reasonable. If Grissom is

able to provide evidence supporting her allegations that the

magnetometer was used to rub her genitals and that the search

continued after she asked the officers to stop, she might

succeed in proving that the search was unreasonable under the

circumstances.”).

The Court also concludes that, assuming Mr. Dickey’s

allegations are true, any reasonable officer would have

understood that, at the time Mr. Dickey was taken in to custody,

repeatedly fondling an individual’s genitals incident to their

arrest would constitute a violation of that persons clearly

established constitutional rights. See e.g. Stewart v. Rouse,

1999 WL 102774, *5 (N.D. Ill, Feb. 22, 1999) (denying qualified

immunity to Officer who allegedly fondled Plaintiff during pat-

down search incident to arrest because “the parameters of a

search incident to arrest as an exception to the warrant

requirement were well-established in 1997” and “objective police

officers could agree that [aggressive groping, grabbing of groin

and breasts] exceeded what was permitted by established law.”).

Defendants argue that “the true test for qualified immunity

in this case was whether it was clearly established that Officer

Alexander was prohibited from alleged touching or manipulating

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the Plaintiff’s genitals through multiple layers of clothing . .

. .” Defs.’ Mem. Reply at 8. Defendants are incorrect. The true

test for qualified immunity in this case is whether, as Mr.

Dickey alleges, the law clearly prohibited fondling such that it

constituted “sexual assault.” Compl. ¶¶ 16-17. It did. See, e.g.

Anderson v. Cornegjo, 199 F.R.D. 228, 259 (N.D. Ill. 2000)

(noting that “no Customs inspector could reasonably believe that

it could be appropriate to fondle a female traveler’s breasts,

crotch area, or buttocks, even above her clothes.”)

Defendants also emphasize that Supreme Court precedent

establishes that a search of an arrestee will be a “relatively

extensive exploration of the person.” Id., citing U.S. v. Scott,

987 A. 2d 1180, 1195 (D.C. 2010). This often cited language is

from the Supreme Court’s decision in Robinson, where the Court

quoted with approval language from Terry. See Terry, 392 U.S. at

25; Robinson, 414 U.S. at 227. Two points deserve emphasis.

First, the Court in Terry noted that “a thorough search must be

made of the prisoner’s arms and armpits, waistline and back, the

groin and area about the testicles, and the entire surface of

the legs down to the feet.” Terry, 392 at fn. 13. A thorough

search of the groin area is distinct from the fondling of

genitalia. To this end, the Court in Robinson also noted that it

would be willing to find unconstitutional a search that was

“extreme or patently abusive.” Id. at 477. A search incident to

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arrest that includes fondling alleged to constitute sexual

assault is “extreme” and “patently abusive.” Put another way, no

reasonable objective officer would conclude that an “extensive

exploration” of a person could include fondling and sexual

assault alleged in this case. For these reasons, Defendants’

Motion to Dismiss Mr. Dickey’s unreasonable search claim under

the Fourth Amendment based on qualified immunity is DENIED.

ii. The facts alleged by Mr. Dickey do not state a

claim for excessive force in violation of his

Fourth Amendment rights.

Defendants argue that the facts pled by Plaintiff are

insufficient to state a claim for excessive force. Defs.’ Mem.

Reply at 3 (“Plaintiff alleges that the illegal forcefulness of

the arrest is evident from the single ripped belt loop on the

Plaintiff’s pants. Plaintiff does not allege that this occurred

because the Inspector was holding onto the belt loop, if the

loop was hooked on the handcuffs, or if it occurred when he was

placed in the police car wearing handcuffs, etc.”). Mr. Dickey

argues that the force used by Officer Alexander started during

the search of Mr. Dickey incident to his arrest and “escalated

to include Defendant Alexander breaking off one of Mr. Dickey’s

belt loops.” Pl.’s Mem. Opp. at 7.

Determining whether the force used to effect a particular

seizure is “reasonable” under the Fourth Amendment requires a

“careful balancing of the nature and quality of the intrusion on

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the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham v.

Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted).

The reasonableness inquiry is an objective one: that is, the

court must determine whether the officer’s actions were

“objectively reasonable” in light of the facts and

circumstances, regardless of any underlying intent or

motivation. Id. Moreover, the Court is mindful that police have

authority to use “some degree of physical coercion” when

arresting a suspect, see Graham, 490 U.S. at 396, and that

“[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” Id. (quoting Johnson v. Glick, 481 F.2d 1028,

1033 (2nd Cir. 1973)).

In this case, it is alleged that “in the course of

conducting his arrest, Defendant Alexander forcibly pushed and

pulled Mr. Dickey, which resulted in the ripping of one of Mr.

Dickey’s belt loops.” Compl. ¶ 12. Accepting this allegation as

true and drawing all inferences in Mr. Dickey’s favor, the Court

concludes Mr. Dickey has failed to allege facts sufficient to

state a claim for excessive use of force. See e.g. Wasserman v.

Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (holding that even

where plaintiff was not moving or resisting, the arresting

officer’s action of forcefully pressing upwards on plaintiff’s

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arm before handcuffing him, causing him pain, was not excessive

force); Rogala v. District of Columbia, 161 F.3d 44, 54 (D.C.

Cir. 1999) (concluding that a police officer who grabbed the

arrestee by the arm and pulled her out of the vehicle’s

passenger seat used a reasonable level of force and therefore

committed no constitutional violation); Martin v. Malhoyt, 830

F.2d 237 (D.C. Cir. 1987) (finding that the arresting officer

did not use excessive force by allegedly grabbing a driver by

the waist, throwing him back into the driver’s seat and slamming

door on his legs); compare with Rudder v. Williams, 666 F.3d

790, 795 (D.C. Cir. 2012) (holding that plaintiffs’ allegation

that an officer’s unprovoked use of a baton against children

aged five and 15 constituted a “degree of force unjustified by

the circumstances.”).

Because Mr. Dickey only alleges that his belt loop was torn

due to what he characterizes as “pushing” and “pulling” by

Officer Alexander, he does not allege facts sufficient to state

a plausible claim for excessive use of force in violation of his

Fourth Amendment rights. As such, Defendants’ Motion to Dismiss

Mr. Dickey’s claim of excessive force under the Fourth Amendment

is GRANTED.

B. Mr. Dickey states a claim for battery, assault and

intentional infliction of emotional distress under the

Federal Tort Claims Act (“FTCA”).

Void of a single case citation discussing the FTCA,

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Defendants contend that Mr. Dickey’s FTCA claims fail based on

the same arguments set forth in opposition to Mr. Dickey’s

unreasonable search claim. Defs.’ Mem. Supp. at 13-15 (“Even

taking the facts as pled, [n]one of these searches were

unreasonable or unlawful under the circumstances and were

authorized by law; and as authorized searches, the touching of

the Plaintiff does not amount to nor does it constitute assault,

battery and intentional infliction of emotional distress.”);

Defs.’ Mem. Reply, Docket No. 10 at 8 (“As discussed above,

although the Plaintiff has alleged that Officer Alexander’s

search violated the rules for a search indecent to arrest, the

Courts have clearly established such a search will be a

‘relatively extensive exploration of the person.’”) (internal

citations omitted)). Plaintiff’s briefing of his FTCA claims,

consisting of three conclusory paragraphs, is equally unhelpful.

Pl.’s Mem. Opp. at 7 and 14.

The United States is immune from suit absent an express

waiver of its sovereign immunity. Kugel v. United States, 947

F.2d 1504, 1506 (D.C. Cir. 1991). The FTCA was enacted in 1946,

designed primarily to “remove the sovereign immunity of the

United States from suits in tort.” Levin v. United States, 133

S.Ct. 1224, 1228 (2013) (internal citations omitted). The FTCA

gives federal district courts exclusive jurisdiction over claims

against the United States for “injury or loss of property, or

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personal injury or death caused by the negligent or wrongful act

or omission” of a federal employee “acting within the scope of

his office or employment.” Millbrook v. U.S., 133 S. Ct. 1441,

1443 (2013); 28 U.S.C. § 1346 (b)(1).

However, the statute includes a number of exemptions that

protect the Government from liability for certain torts. Id. For

example, the statute includes an “intentional tort exception,”

which preserves the Government’s immunity for “[a]ny claim

arising out of assault, battery, false imprisonment, false

arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights.” § 2680(h). This means that government employees cannot

be sued for these intentional torts under the FTCA. However, in

1974, Congress carved out an exception to Section 2680(h),

commonly referred to as the “law enforcement provisio,” which

extends the waiver of sovereign immunity to six intentional

torts when alleged as rising out of the wrongful conduct of law

enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93-253,

§ 2, 88 Stat. 50. This means that “anyone empowered by law to

execute searches, to seize evidence or to make arrests for

violations of federal law” may be sued for the following

intentional torts: assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution. Id. In 2013

the Supreme Court held that “the waiver effected by the law

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enforcement proviso extends to acts or omissions of law

enforcement officers that arise within the scope of their

employment, regardless of whether the officers are engaged in

investigative or law enforcement activity, or are executing a

search, seizing evidence, or making an arrest.” Millbrook v.

United States, 133 S. Ct. 1441, 1446 (2013).

Here, Mr. Dickey’s battery and assault claims are feasible

under the FTCA because the waiver of sovereign immunity is

extended to battery and assault by the law enforcement proviso.

Mr. Dickey’s intentional infliction of emotional distress claim

is possible because it is not one of the intentional torts

listed by Congress in the § 2680(h) exception. Each of these

claims are plausibly alleged in connection with Mr. Dickey’s

claim of an unreasonable search in violation of his Fourth

Amendment rights. The burden is on Defendants to show that Mr.

Dickey’s FTCA claims should be dismissed. Because Defendants do

not make any persuasive arguments to that end, Defendants’

Motion to Dismiss Mr. Dickey’s FTCA claims is DENIED. 5

5 Plaintiffs suing under the FTCA must exhaust their

administrative remedies prior to filing suit. McNeil v. United

States, 508 U.S. 106 (1993). “The exhaustion requirement is

jurisdictional.” Hurt v. Lappin, 729 F. Supp.2d 186, 190 (D.D.C.

2010) (citing GAF Corp. v. United States, 818 F.2d 901, 904)

(D.C. Cir. 1987). That is, exhaustion is a “mandatory

prerequisite” to a court suit under the FTCA. Id. Here, Mr.

Dickey alleges that he exhausted his administrative remedies by

“sending notice of his claim to the Federal Protective Services

on or about May 13, 2014 (less than a year after the incident

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III. CONCLUSION

After consideration of the motion, the response and reply

thereto, the applicable law, and the entire record, for the

reasons discussed in this Memorandum Opinion, Defendant’s Motion

is GRANTED in part and DENIED in part. An appropriate order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan

United States District Court Judge

March 30, 2016

occurred), and more than six (6) months have expired without a

response.” Compl. ¶ 23. Although no evidence of this exhaustion

is attached to Mr. Dickey’s complaint, Defendants do not contest

his claim of proper exhaustion.

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