RUDOLPH CONTRERAS, United States District Judge
Plaintiff Melvin Gresham brings this employment discrimination action against his employer, the District of Columbia ("District"), alleging claims under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Pending before the Court is the District's motion for summary judgment, on the grounds that, inter alia, this case is barred by res judicata. See ECF No. 38. For the reasons that follow, the Court will grant the District's motion.
The Plaintiff Melvin Gresham is currently a Second District Captain for the Metropolitan Police Department ("MPD"). See Def.'s Statement Undisputed Facts ¶ 1, ECF No. 38. He has been an MPD employee since 1984. Id. In 2008 and 2009, Cpt. Gresham brought three other lawsuits involving similar factual allegations to the ones brought in this suit, and as such, the Court will chronicle the facts of each to provide a cohesive background.
On June 27, 2008, Cpt. Gresham ("Plaintiff") brought suit against MPD, MPD Chief Cathy Lanier, and several other officers of the MPD. Plaintiff alleged, inter alia, that in 2004, he "was ordered to `target' Lt. Ronda Nunnally and to assist other uniformed officers in driving her from the police workforce." Compl. ¶ 10, ECF No. 38-5. Lt. Nunnally had filed a lawsuit in 2004 against MPD for, inter alia, sex discrimination, and Plaintiff
Meanwhile, in the same complaint, Plaintiff also made allegations that his co-worker, Lieutenant Michael Smith, had been subject to several disciplinary actions including: (1) an incident occurring on October 6, 2007 involving Smith harassing another police officer; (2) an incident occurring in March 2008 where Smith was reprimanded for violations of Department policy on mailing tickets to those charged with violations; and (3) an incident occurring in April 2008 where Smith was disciplined for misconduct. See Compl. ¶¶ 17-21. In those allegations, he also described what discipline, if any, Smith incurred for his behavior.
In addition, Plaintiff alleged that on or around January 7, 2008, someone "anonymously" reported that Plaintiff had abused his police powers by using his rank to influence and intimidate an investigating officer to alter an investigative report, in connection with a metro bus accident Plaintiff had been "involved in [in] a police scout car while on duty." Compl. ¶¶ 22-23.
In that action, Plaintiff asserted causes of action for (1) MPD's violation of 5 U.S.C. § 2301(b)(8), (2) MPD's violation of D.C.Code § 1-615.51 et seq. (D.C. Whistleblower Protection Act), (3) Breach of Contract, see Compl. ¶ 44 (alleging that MPD "had a duty to Cpt. Gresham by way of the terms of employment to provide him every employment opportunity to be fairly
The District moved to dismiss under Federal Rule of Civil Procedure 12(b)(4) for failure to effect proper service pursuant to Federal Rules of Civil Procedure 4(e) and 4(j). See Defs.' Mot. to Dismiss 1, Gresham v. Lanier, No. 08-1117, ECF No. 12 (D.D.C. Oct. 28, 2008). In a minute order dated December 9, 2008, the Court granted that motion, saying that "[t]he complaint is dismissed without prejudice. The plaintiff is permitted to file a new and properly served complaint naming only the District of Columbia as a defendant provided the complaint is filed within 30 days." See Gresham v. Lanier, No. 08-1117, Minute Order (D.D.C. Dec. 9, 2008).
In accordance with the district court's minute order, Plaintiff re-filed his 2008 lawsuit against MPD in 2009. In a new complaint filed January 8, 2009, Plaintiff alleged essentially the same facts that he alleged in his 2008 lawsuit. See Compl. ¶¶ 4-14, Gresham v. District of Columbia, No. 09-0029, ECF No. 1 (D.D.C. Jan. 8, 2009) (describing the 2004 lawsuit Lt. Nunnally had filed and Plaintiff's instruction from superiors to drive her from the workplace and not to testify on her behalf, the various disciplinary incidents of Lt. Smith, and the accident with the metro bus in which Plaintiff was accused of violating his police powers to intimidate a junior police officer investigating the accident).
However, in this new suit, Plaintiff asserted three causes of action against the District: (1) violation of Plaintiff's First Amendment rights under 42 U.S.C. § 1983 by "initiating an adverse prosecutorial action against him for speaking out against corruption and discriminatory treatment of fellow officers by agents of the District of Columbia;" see Compl. ¶ 19, (2) violation of the D.C. Whistleblower Protection Act, D.C.Code § 1-615.51 et seq., for taking "adverse retaliatory action against him for his refusal to join in retaliatory, discriminatory and harassing acts against other uniformed officers targeted for discharge;" see Compl. ¶ 22, and (3) Intentional Infliction of Emotion[al] Distress.
The district court ultimately dismissed the Plaintiff's First Amendment 42 U.S.C. § 1983 claim on the grounds that the Plaintiff "failed to show that his injuries resulted from an unconstitutional policy or practice for which the District can be held liable." See Memorandum 1, Gresham v. District of Columbia, No. 09-0029, ECF No. 24 (D.D.C. Aug. 3, 2009). The district court declined to exercise supplemental jurisdiction over the Plaintiff's state law claims and dismissed those counts without prejudice. See Memorandum at 5-6; see also Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 25 (D.D.C. Aug. 3, 2009) ("[D]efendant's motion to dismiss, treated as a motion for summary judgment ... is granted as to Count I. Counts II and III are dismissed without prejudice."). After Plaintiff amended his complaint to assert diversity jurisdiction as a basis upon which to keep his state claims alive, the court dismissed Plaintiff's complaint entirely, on the basis that the Plaintiff could not assert a diversity jurisdiction claim against the District of Columbia as defendant — because the District is not a "citizen of a state" — citing Long v. District of Columbia, 820 F.2d 409, 414 (D.C.Cir. 1987). See Memorandum 1, Gresham v. District of Columbia, No. 09-0029, ECF No. 32 (D.D.C. Sept. 9, 2009); Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 33 (D.D.C. Sept. 9, 2009). The Plaintiff appealed that decision, see ECF No. 34, and the D.C. Circuit affirmed
Meanwhile, in November 2008, Plaintiff filed another lawsuit, joined by seven other plaintiffs, against the District of Columbia and the United States Drug Enforcement Agency ("DEA"). The suit arose out of an incident that occurred on Plaintiff's property located at 2905 Georgia Avenue, NW, on July 31, 2008. See Am. Compl. ¶ 11, Hoffman v. Lanier, No. 08-1924, ECF No. 2 (D.D.C. Nov. 26, 2008). The property was owned by Plaintiff, but he leased it to the District of Columbia Housing Authority, who in turn screened and placed families in the residence under its Section 8 Program. Am. Compl. ¶ 20. Plaintiff, along with seven others present at the time, alleged that they were victims of a DEA/MPD raid of that property. Am. Compl. ¶¶ 1-8. They alleged that Chief Lanier, agents of the Office of the District of Columbia Attorney General, and agents of the United States Attorney's Office authorized unlawful surveillance operations and an unlawful search and seizure of the Plaintiff's Georgia Avenue property. Am. Compl. ¶¶ 23-26. They also alleged that during the "raid," officers "threatened to use deadly force, and did terrorize the plaintiffs putting them in fear of loss of life." Am. Compl. ¶ 27.
Plaintiff alleged that "from July 2007 to December 2007, agents of the DCMPD developed and executed a program of retaliation against Captain Gresham ... [with] [t]he objective [being] to dismiss Caption [sic] Gresham from DCMPD employment." Am. Compl. ¶ 13. Plaintiff alleged that he "became the target of the defendants for ... whistleblower actions against corrupt DCMPD officers, and to [sic] in retaliation against him for his refusal to give false testimony against Lt. Nunnally in another civil case." Id. Plaintiff again raised the allegations regarding Lt. Smith and the "anonymous" complaint initiated against him for abusing his police powers in connection with an accident report in January 2008. Am. Compl. ¶ 14. Plaintiff also reiterated his allegations against Lt. Smith, explaining that "Lt. Smith has a history of disciplinary problems." Am. Compl. ¶ 18.
The eight plaintiffs brought the following fifteen causes of action against both the MPD and the DEA: (1) violation of First Amendment rights under 42 U.S.C. § 1983,
The various claims in this case were disposed of for various reasons. First, as to the federal defendants, the district court granted their motion to dismiss, on the grounds that (1) plaintiffs did not exhaust their administrative remedies for their tort claims under the Federal Tort Claims Act — which is jurisdictional under that statute — and (2) the plaintiffs could not state a claim against the United States under 42 U.S.C. § 1983, 42 U.S.C. § 1981, or their D.C. causes of action because those statutes do not apply to federal actors. The court also dismissed the plaintiffs' claim for a declaratory judgment because of the absence of a live case or controversy. See Mem. Op. 1, Hoffman v. Lanier, No. 08-1924, ECF No. 35 (D.D.C. Aug. 17, 2009). The judgment as to the federal actors was thus entered in part on jurisdictional grounds (as to the tort claims) and in part on the merits (as to the federal and D.C. statutory causes of action). Second, as to the District of Columbia defendants, the district court granted their motion to dismiss as conceded, because the plaintiffs failed to respond. See Mem. Op. 13-14, Hoffman v. Lanier, No. 08-1924, ECF No. 44 (D.D.C. Feb. 4, 2010) ("Here, the plaintiffs have failed to respond to the District's arguments for dismissal of the plaintiffs' claims against it. The plaintiffs have not offered any excuse for their failure to respond in a timely fashion, nor have they moved for leave to late-file an opposition. Accordingly, the court grants the District's motion to dismiss as conceded and dismisses all claims asserted against the District."). The plaintiffs filed two motions for reconsideration, both of which were denied, see ECF Nos. 45, 50, 52, and then filed a notice of appeal. See ECF No. 53. The D.C. Circuit found that appellants' notice of appeal was only timely as to the district court's order denying their second motion for reconsideration, and summarily affirmed the district court. See ECF No. 56.
In this action, the Plaintiff alleges similar facts that are more helpfully understood in the context of the parties' statements of facts. On November 27, 2007, Plaintiff was involved in an off-duty car accident when a WMATA bus operator ran into his personal vehicle. See Pl.'s Statements of Material Facts No. 25 (citing Pl.'s Ex. 2, Pl.'s Ex. 16 at 51-52), ECF No. 40. On January 7, 2008, the Internal Affairs Division of the MPD received an anonymous report that Plaintiff had exercised undue influence over an officer responsible for investigating an accident in which Plaintiff was involved. See Def.'s Ex. B, ECF No. 38-2. An investigation was conducted, and Plaintiff was ultimately issued an Official Reprimand on May 21, 2008. See id. Plaintiff believes that white officers generally were and are disciplined less harshly than black officers (including himself) in the MPD for engaging in similarly egregious or more egregious conduct. See Pl.'s Statement of Material Facts No. 33. Some of the incidents to which Plaintiff refers include:
The present action was filed on June 27, 2011, with an amended complaint filed on October 26, 2011. See ECF Nos. 1 & 9. In the Amended Complaint, Plaintiff alleges that he "was disparately disciplined in comparison to fellow White police officers for similar action, and Plaintiff had allegations of misconduct against him aggressively pursued by DCMPD." Am. Compl. ¶ 11. Plaintiff further alleges that in 2008, he "was accused of misconduct by another officer; his termination was proposed; he was ordered to face a Trial Board; and was issued a letter of reprimand for conduct unbecoming an officer." Id. ¶ 12. Plaintiff then makes several allegations that "White officers have been accused of and found to have been guilty of misconduct. However, the White officers were not disciplined in some instances, and not disciplined as severely as Plaintiff, in other instances." Id. ¶ 13. Some of the other allegations include that "on or about 2009 a White officer was accused of hacking into someone's email account and was not charged by the department, even though he could have been charged criminally," and "in 2011, a White officer was found to have falsified a report regarding leave slips and was not made to face a Trial Board, and he only received a ten (10) day suspension; on or about 2008 or 2009, another White officer was involved in a fatal shooting and allegedly later tested positive for drugs but yet he was not subjected to discipline as warranted by the Department's policies and procedures." Id. Plaintiff also claimed that "DCMPD brought a false complaint against Plaintiff alleging the release of false and misleading information to local media outlets." Id. ¶ 14. He further alleged that "[s]ince 2007 and continuing to the present ... White officers have engaged in a pattern of misconduct, which violates DCMPD policies and procedures, including making false allegations against Plaintiff," see id. ¶ 18, and that "[b]etween 2007 and the present, Plaintiff has been repeatedly and continually subjected to a hostile work environment." Id. ¶ 23. His final general factual allegation is that "[d]ue to Plaintiff's race, and in retaliation for Plaintiff complaining about discrimination, DCMPD has engaged in a campaign designed to force Plaintiff to resign his position and ruin his career." Id. ¶ 24. Plaintiff further claims that "[d]espite many complaints and challenges to the unfair and discriminatory treatment, management, including the Chief of Police has failed and refuses to take effective action to end the unfair treatment." Id.
Plaintiff has asserted five claims in this action. The first is a claim for Race Discrimination
The second count is for Retaliation/Reprisal/Hostile Work Environment, also under Title VII, where Plaintiff alleges that "[o]n or about 2005, an employee named Plaintiff as a witness in her EEO complaint. In October 2007, Plaintiff maintains that he was approached during the official investigation by Defendant regarding the allegations asserted in her EEO complaint. When questioned, he refused to change his position of what he believed occurred. In 2008, Plaintiff was called to testify in support of her federal EEO case." Id. ¶ 43. He claimed that "[a]s a direct result of Plaintiff's complaints of workplace discrimination and his participation in his coworker's EEO complaint, he was subjected [sic] retaliation and a hostile work environment." Id. ¶ 44. He elaborated that "[t]he adverse retaliatory actions to which Plaintiff has been subjected are directly a result of Plaintiff having previously engaged in protected EEO activity." Id. ¶ 47. He also reiterated the factual allegations regarding his Georgia Avenue property and the false allegations allegedly made against him by other officers. Id. ¶ 48.
Plaintiff's third cause of action asserts a claim for race discrimination under 42 U.S.C. § 1981, asserting as a predicate the Fifth Amendment. Plaintiff's fourth cause of action asserts a claim for race discrimination under 42 U.S.C. § 1983, also asserting as a predicate the Fifth Amendment. His fifth cause of action is one for Equitable Relief.
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The District has moved for summary judgment arguing first that the Plaintiff's claims are barred by res judicata, based on Plaintiff's filing of three prior actions "arising from the same nucleus of operative facts as this action." See Def.'s Mot. Summ. J. 2, 6-8, ECF No. 38. In the alternative, the District argues that it is entitled to judgment on Plaintiff's claims because no reasonable jury would find for Plaintiff on his Title VII claims, and 42 U.S.C. §§ 1981 and 1983 are not appropriate channels for Plaintiff to challenge the District's alleged misconduct. See Def.'s Mot. Summ. J. 2, 8-14. The Court agrees that Plaintiff's claims are barred by res judicata, and will therefore grant defendant's motion for summary judgment for the reasons that follow.
A court may grant summary judgment when "the movant shows that there is no
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the nonmovant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In considering a motion for summary judgment, a court must "eschew making credibility determinations or weighing the evidence[,]" Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).
"Also known as claim preclusion, the doctrine of res judicata holds that a judgment on the merits in a prior suit bars a second suit involving identical parties or their privies based on the same cause of action." Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217 (D.C.Cir.2004). Res judicata bars a subsequent lawsuit "if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction." Porter v. Shah, 606 F.3d 809, 813-14 (D.C.Cir.2010) (citations omitted); see also Smalls v. U.S., 471 F.3d 186, 192 (D.C.Cir.2006) (same). The parties dispute the first three elements of the res judicata test, and accordingly, the Court will analyze those elements in turn.
The first factor in the res judicata analysis is known as the "identity" element, and is defined as follows: "there is an identity of the causes of action when the cases are based on the same nucleus of facts because it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory on which a litigant relies." Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C.Cir.2009) (emphasis added) (internal quotation marks and citations omitted). "To determine whether two cases share the same nucleus of facts, the Court considers whether the facts are related in time, space, origin, or motivation; whether they form a convenient trial unit; and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." McIntyre v. Fulwood, 892 F.Supp.2d 209, 215 (D.D.C.2012) (citing Stanton v. Dist. of Columbia Court of Appeals, 127 F.3d 72, 78 (D.C.Cir.1997)).
The Court will discuss the counts separately because they allege different facts
In Count II specifically, Plaintiff makes the following factual allegations already raised in his prior lawsuits:
Plaintiff alleged these same facts in all three prior actions, and importantly, alleged that he was retaliated against and harassed by Lt. Smith, Chief Lanier, and other members of the MPD for engaging in EEO and whistleblowing activity. Specifically, in his first 2008 lawsuit, Plaintiff alleged that he "has been DENIED promotions, and subjected to a hostile work environment all in retaliation for his Whistleblower activities and his refusal to participate in illegal acts of retaliation against fellow police officers." Compl. ¶ 31, No. 08-1117, ECF No. 1 (emphasis added). He also alleged that MPD breached its contractual duty to him "to avoid being targeted for retaliation, or otherwise harassed." Compl. ¶ 44 (emphasis added). In his other 2008 lawsuit, Plaintiff alleged that "from July 2007 to December 2007, agents of the DCMPD developed and executed a program of retaliation against Captain Gresham ... [with] [t]he objective [being] to dismiss Caption [sic] Gresham from DCMPD employment." Am. Compl. ¶ 13, No. 08-1924, ECF No. 2 (emphasis added). He also alleged that he "became the target of the defendants for ... whistleblower actions against corrupt DCMPD officers, and to [sic] in retaliation against him for his refusal to give false testimony against Lt. Nunnally in another civil case." Id. (emphasis added).
Plaintiff pursued these claims seeking legal relief under the D.C. Whistleblower Protection Act and 42 U.S.C. § 1983 for First Amendment violations. Plaintiff fails to identify any reason he could not have also brought retaliation and/or hostile work environment claims under Title VII in any of his prior suits, given that the factual allegations giving rise to this count are the same as those brought in his prior suits.
Although Plaintiff previously claimed that the retaliation he suffered was based on his First Amendment protected activity or his whistle-blowing activities and now claims that the retaliation was based on his EEO protected activities, such a change in theory does not change the outcome. See RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F.Supp.2d 182, 191-92 (D.D.C. 2011) aff'd, 682 F.3d 1043 (D.C.Cir.2012) ("Since `claim preclusion precludes the litigation of claims, not just arguments, the plaintiff cannot re-litigate an issue simply by asserting a different legal claim.... The fact that the plaintiff asserts a different legal claim [on the same facts] does not preclude application of res judicata.") (internal quotation marks and citations omitted) (emphasis in original); Youngin's Auto Body v. District of Columbia, 775 F.Supp.2d 1, 7 (D.D.C.2011) ("[F]or the purposes of claim preclusion, the legal theory
The other four counts in Plaintiff's complaint are slightly more complicated because those counts rehash old facts arising from Plaintiff's prior suits, and also allege new facts that arose subsequent to the judgments in his prior suits, as ongoing conduct by the defendant. Plaintiff claims that he seeks "redress for the wrongs he was subjected to by the District since 2007 to the present, and not just what occurred in 2007." See Pl.'s Opp'n Mot. 19, ECF No. 40. Specifically, Plaintiff alleges that from 2007 or 2008 through present, he has been subjected to more harsh discipline than white officers. See Am. Compl. ¶¶ 11, 12, 13, 27. To support these claims, Plaintiff cites factual examples that arose prior to, and were alleged in his 2008 and 2009 lawsuits. See Am. Compl. ¶¶ 12, 13; see also Pl.'s EEO Statement of Facts, ECF No. 40-8 (explaining incidents with Lt. Smith that occurred in 2007 and 2008, the metro bus incident, and Plaintiff's Official Reprimand). He also adds factual support from incidents occurring in 2009, 2010, 2011, and 2012. See Am. Compl. ¶ 13; see also Pl.'s Answer to Interrogatory No. 16, ECF No. 40-5 (chronicling incidents of bad conduct by white officers of various ranks from 2009 through 2012 and whether or not they were disciplined for such conduct).
It is true that "[r]es judicata does not preclude claims based on facts not yet in existence at the time of the original action." See Drake v. FAA, 291 F.3d 59, 66 (D.C.Cir.2002). However, Plaintiff's "new" factual allegations are not actionable because they do not amount to new acts of discrimination or retaliation against Plaintiff; rather they simply provide more comparator evidence to suggest that the discipline the Plaintiff received in
Moreover, any non-comparator factual allegations, i.e., Am. Compl. ¶¶ 29, 36, 48, were also already brought in Plaintiff's
Plaintiff's other non-comparator factual allegations in these counts were also already brought in Hoffman v. Lanier. Specifically, here Plaintiff alleges that "he was informed by the Attorney General that his rental unit would be investigated as a nuisance and threatened that his unit could be seized ... [and] he was advised that a Departmental official told another officer to do a background check on him." Am. Compl. ¶¶ 36, 48. He also alleges that on or around October 2, 2008, "another officer informed him that he was told by a Departmental official to `find anything on [Plaintiff] that the Department could use against him.'" Am. Compl. ¶¶ 36, 48. However, Plaintiff already made these factual allegations in Hoffman v. Lanier. See Am. Compl. ¶¶ 32, 33, Hoffman v. Lanier, No. 08-1924, ECF No. 2 (alleging that the U.S. Attorney for the District of Columbia "has threatened criminal action to seize [Plaintiff's] property alleging that it presents a nuisance," and alleging that Senior managers at DCMPD ordered seizure of, inter alia, Cpt. Gresham's computer "to find anything ... that they ... could use against him."). Accordingly, causes of action arising from these factual allegations are also barred by res judicata, as they were already brought in one of Plaintiff's prior lawsuits.
Meanwhile, as to the second res judicata factor, one in privity with another is said to be one "so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved." Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963); accord McIntyre, 892 F.Supp.2d at 215. The Plaintiff argues that the complaint here differs from the complaints in Gresham v. Lanier, 08-cv-1117, and Hoffman v. Lanier, 08-cv-1924, because the current suit names only the District as defendant whereas the previous suits named multiple police officers as defendants as well. See Pl.'s Opp'n Mot. 19-20. The Plaintiff also argues that in Hoffman v. Lanier, he was one of eight plaintiffs. Id. at 20. These differences are of no legal consequence. The defendant here is the District of Columbia, who was named as a defendant in all of the Plaintiff's prior lawsuits. Moreover, in Hoffman v. Lanier, the Plaintiff named the individual officers in their official capacities, and then amended his complaint to name only the District of Columbia, given that a suit against an officer in his official capacity is the same as a suit against the District. Compare Compl., ECF No. 1 (Nov. 6, 2008) with Am. Compl., ECF No. 2 (Nov. 26, 2008), Hoffman v. Lanier, No. 08-1924; see also Blue v. District of Columbia, 850 F.Supp.2d 16, 23 (D.D.C.2012) ("Based upon the understanding that it is duplicative to name both a government entity and the entity's employees in their official capacity, courts routinely dismiss claims against the officials to conserve judicial
As to the third and last disputed element of the res judicata analysis, the District argues that the prior actions were decided on the merits; not surprisingly, the Plaintiff argues that none of the three lawsuits were dismissed on the merits. To determine whether they were, the Court analyzes each dismissal.
The first lawsuit, Gresham v. Lanier, was dismissed under Federal Rule of Civil Procedure 12(b)(4) for failure to effect proper service. In a minute order, the district court granted the defendant's motion to dismiss without prejudice. See Gresham v. Lanier, No. 08-1117, Minute Order (D.D.C. Dec. 9, 2008) ("[T]he complaint is dismissed without prejudice. The plaintiff is permitted to file a new and properly served complaint naming only the District of Columbia as a defendant provided the complaint is filed within 30 days."). This did not constitute a dismissal on the merits, as it is axiomatic that a dismissal without prejudice does not constitute a dismissal on the merits with claim preclusive effect. Brewer v. District of Columbia, 891 F.Supp.2d 126, 134 (D.D.C. 2012) ("If the prior action has been dismissed without prejudice, there has been no final judgment on the merits, and a plaintiff will not be precluded by the doctrine of res judicata from having his claims heard on the merits in a separate court.") (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir.1983)); Ponder v. Chase Home Fin., LLC, 865 F.Supp.2d 13, 17 (D.D.C.2012) ("It is ... beyond dispute that a dismissal without prejudice does not determine the merits.") (citation omitted).
That lawsuit, however, was re-filed in 2009, naming only the District of Columbia as a defendant. See generally Compl., Gresham v. District of Columbia, No. 09-0029, ECF No. 1 (D.D.C. Jan. 8, 2009). That suit alleged three counts: (1) a 42 U.S.C. § 1983 claim for violating the Plaintiff's First Amendment rights in retaliation for "initiating an adverse prosecutorial action against him for speaking out against corruption and discriminatory treatment of fellow officers by agents of the District of Columbia," see Compl. ¶¶ 18-19; (2) a claim for violation of the D.C. Whistleblower Protection Act, for taking "adverse retaliatory action against him for his refusal to join in retaliatory, discriminatory and harassing acts against other uniformed officers targeted for discharge," Compl. ¶ 22;
After granting the Plaintiff leave to amend his complaint, the court ultimately dismissed the Plaintiff's entire complaint. See Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 33 (D.D.C. Sept. 9, 2009) ("For the reason set forth in the accompanying memorandum, plaintiff's complaint is dismissed"). However, that dismissal was one for lack of subject matter jurisdiction, as the court specified in the accompanying memorandum that "[t]he District's response to [the] order of the court, treated as a motion to dismiss for want of subject matter jurisdiction, will be granted. Plaintiff's remedy, if he has one, must be pursued in the courts of the District of Columbia." See Memorandum, Gresham v. District of Columbia, No. 09-0029, ECF No. 32 (D.D.C. Sept. 9, 2009). A dismissal for lack of subject matter jurisdiction does not constitute adjudication on the merits with claim preclusive effect. See Miller v. Saxbe, 396 F.Supp. 1260, 1261 (D.D.C.1975) ("Such a dismissal on jurisdictional grounds is not `on the merits' for res judicata purposes and consequently is `without prejudice' to a subsequent action raising the same or similar underlying facts if different grounds for jurisdiction are claimed.") (citing FED. R. CIV. P. 41(b)); see also 18A FED. PRAC. & PROC. JURIS. § 4436 (2d ed.) ("There is little mystery about the res judicata effects of a judgment that dismisses an action for lack of subject-matter or personal jurisdiction or for improper venue. Civil Rule 41(b) provides that a dismissal for lack of jurisdiction or improper venue does not operate as an adjudication upon the merits."). Thus, in this initial action, the D.C. Whistleblower Protection Act and Intentional Infliction of Emotional Distress claims were not adjudicated on the merits. However, these two claims were alternative theories for recovery under the same facts as the First Amendment claim, which was adjudicated on the merits. Thus, an adjudication on the merits of the First Amendment claim encompassed all of the factual allegations that these two other claims were based on, for purposes of res judicata.
Even if that were not the case, all of Plaintiff's counts against the District were ultimately adjudicated on the merits in Hoffman v. Lanier. In that case, the plaintiffs brought 15 counts, including one for Intentional Infliction of Emotional Distress and one for violation of the D.C. Whistleblower Protection Act (and this count was brought by Plaintiff only). See Counts IV & XI, Am. Compl., Hoffman v. Lanier, No. 08-1924, ECF No. 2. Though the Plaintiff was one of eight plaintiffs, and his main issue in that lawsuit was the July 31, 2008 raid on his Georgia Avenue property, Plaintiff in that action still raised the same allegations against the District regarding
In sum, Count II arises from the same nucleus of facts as Plaintiff's prior actions, and the remaining counts — though adding
For the foregoing reasons, the District's motion for summary judgment is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
