Memorandum in Support of Motion


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |


The plaintiffs, three perennial demonstrators in Lafayette Park, have brought suit against the United States, the National Park Service, the United States Park Police and three individual federal employees. The gravamen of plaintiffs' complaint is that certain Park Police officers are arbitrarily and "without probable cause" enforcing against them certain of the regulations governing demonstrators in Lafayette Park, The plaintiffs seek a permanent injunction against such arbitrary enforcement or threats of enforcement, as well as an injunction prohibiting the Park Service from assigning two particular officers to duty in Lafayette Park. Amended Complaint, p. 2.

In their complaint, plaintiffs assert little more than that Park Police officers have attempted to enforce the regulations governing demonstrators in Lafayette Park. See 36 C.F.R. 7.96. Plaintiffs assert that these regulations, as they apply to "structures" and "camping" are vague and are subject to arbitrary


enforcement, thereby chilling plaintiffs' speech in violation of the First Amendment.

As this Court is aware, these very regulations have been upheld against numerous challenges - - including challenges by these plaintiffs. See Clark v. CCNV, 468 U.S. 288 (1984) (upholding camping regulation, 36 C.F.R. 7.96(i), as valid time, place and manner restriction); White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984) (upholding White House sidewalk sign, parcel and "center zone" regulations); United States v. Thomas, 864 F.2d 188 (D.C. Cir. 1988) (upholding conviction under camping regulation and rejecting constitutional challenge); Thomas v. Lujan, 791 F.Supp. 321 (D.D.C. 1991) (upholding Lafayette Park storage regulation). Indeed, similar claims of conspiracy and deprivation of First Amendment rights brought by these plaintiffs have been rejected more than once. See Huddle v. Reaqan, 1991 U.S. Dist. LEXIS 7070 (D.D.C. 1991); Thomas v. United States, 696 F.Supp. 702 (D.D.C. 1988).

The plaintiffs' specific factual allegations fall into five categories:

  1. the arrest of Mr. Thomas;
  2. warnings to Mr. Thomas that one of his signs fails to comply with the applicable regulations;
  3. warnings to plaintiff Picciot to that the addition of flags to her sign violated the applicable regulations;
  4. warnings to plaintiff Picciotto that a cooler violated the applicable regulations; and
  5. warnings to the plaintiffs about violations of the camping prohibition.

As discussed in detail below, the plaintiffs' claims against the


individual defendants' should be dismissed for the following independent reasons, First, the plaintiffs cannot maintain a Bivens claim against Mr. Robbins based upon his alleged role in failing properly to supervise Park Police officers. Second, as to all of the claims against the individuals, the plaintiffs' amended complaint fails to meet the heightened pleading standard imposed upon Bivens plaintiffs. Third, all of the defendants are entitled to qualified immunity. Accordingly, The Bivens claims against the three individual defendants should be dismissed for the following independent reasons. First, the plaintiffs cannot maintain a Bivens claim against Mr. Robbins based upon his alleged role in failing properly to supervise Park Police officers. Second, as to all of the claims against the individuals, the plaintiffs' amended complaint fails to meet the heightened pleading standard imposed upon Bivens plaintiffs. Third, all of the defendants are entitled to qualified immunity. Accordingly, the Bivens claims against the three individual defendants should be dismissed.[1]

A. Plaintiffs' Claims Against All of the Defendants
In Their Individual Capacities Must
Be Dismissed For Failure To State A Claim

It is fundamental that for a federal official properly to be sued individually for actions taken by him in an official capacity, the complaint must allege a specific deprivation of plaintiff's rights by each defendant, with specific factual allegations as to each alleged deprivation. Failure to allege a specific, factually detailed violation deprives the Court of subject matter jurisdiction over the individual and fails to state a claim as to any individual defendant for actions taken in his official capacity. In such a case the complaint must be dismissed. Carlson v. Green, 446 U.S. 14, 18 (1980); Baker v. McCollum, 443 U.S. 137, 140 (1979); Davis v. Passman, 442 U.S. 228, 239(1979). In the instant case, plaintiffs patently fail to meet this standard.

[1 See Bivens v. Six Unknown Named Asents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).]


Plaintiffs have sued three defendants[2] in their individual capacities: Richard Robbins, Assistant Solicitor for the National Park Service; Officer Stephen O'Neill and Officer Andrew Keness, both officers with the United States Park Police. For the following reasons, plaintiffs' Bivens claims against all of the defendants must be dismissed.

1. Plaintiffs' Bivens Claims Against
Defendant Robbins, Merely Alleging
Supervisory Negligence. Must Be Dismissed

Plaintiffs' claim against defendant Robbins is apparently based upon an allegation of some sort of constitutional supervisory negligence. See Amended Complaint, p. 2 and Count VI. Plaintiff does not allege that Mr. Robbins had any direct role in the enforcement actions about which he complains. Indeed, he merely alleges that Mr. Robbins, as part of his official duties, advises the Park Police on enforcement of the applicable regulations, and that he wrote to Mr. Robbins about whether or not his sign complies with the applicable regulations, but Mr. Robbins failed to respond quickly enough to suit Mr. Thomas. See Amended Complaint, p. 2 and Exhibit 1 to plaintiffs'

[2 Although plaintiff has also named "Officer X", it is plain that this individual is not before this Court, because he has neither been named nor served. In any event, the factual allegations relating to "Officer X" are completely unrelated to the plaintiffs' claims of arbitrary enforcement of the applicable regulations. Plaintiffs allege nothing more than that "Officer X"was involved in the shooting of Marcelino Corniel. Amended Complaint, 24.]


original complaint.[3]

As this Court has recently held:

  • It is established law, however, that a constitutional tort action may be brought only against those personally responsible for the wrongs, and not against others on the theory of respondeat superior.

Brvant v. Carlson, 652 F.Supp. 1286 (D. D.C. 1987), citing McClain v. Barrv, 697 F.2d 366, 368 (D.C. Cir. 1983) and TarDlev v. Greene, 684 F.2d 1, 9-11 (D.C. Cir. 1982). See also Havnesworth v. Miller, 820 F.2d 1245, 1262 (D.C. Cir. 1987).

In Brvant, the Court went on to hold that the "claims against the individual defendants must be dismissed because neither defendant is personally responsible for plaintiff's alleged mistreatment." 652 F.Supp. at 1287. Likewise, plaintiff here does not allege that defendant Robbins was personally involved in the actions about which he complains. Rather, he argues that he should be liable because of his alleged supervisory position. Thus, the claims against defendant Robbins in his individual capacity must be dismissed.

2. Plaintiffs' Bivens Claims Against Defendants
Robbins, O'Neill and Keness, Based Upon
Conclusory Alleqations, Must Be Dismissed

As our Court of Appeals has consistently explained, Bivens plaintiffs are held to a "heightened pleading standard" which requires plaintiffs at the very least [to] specify the 'clearly

[3 In fact, in his letter to Mr. Robbins, Mr. Thomas praised Mr. Robbins for having "consistently emphasized the need to 'balance First Amendment freedoms of speech and expression against the rights of . . . traditional recreational and aestheticpurposes.'" Plaintiffs' Exhibit 1, at 2.]


established' rights they allege to have been violated with...precis[ion]". Martin v. Malhovt, 830 F.2d 237, 253 (D.C. Cir. 1987), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987), Quotinq Smith v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986) and Hobson v, Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985). This heightened pleading standard is applicable to all Bivens cases no matter what allegations are made. Martin v. Malhoyt, 830 F.2d at 253 and n.40. See also Hunter v. District of Columbia, 943 F.2d 69, 75 (D.C. Cir. 1991); Siesert v. Gillev, 895 F.2d 797 (D.C. Cir. 1990), aff'd on other grounds, 111 S.Ct, 1789 (1991); Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir. 1989), cert. denied, 110 S.Ct. 3301 (1990); Hobson, supra, 737 F.2d at 29-31; Martin v. Metropolitan Police Dept., 812 F.2d 1425, 1434-36 (D.C. Cir. 1987). Our Court of Appeals has recently reiterated the importance of the heightened pleading standard in Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir. 1993).

Thus, the plaintiff, in his complaint, must state facts with particularity that demonstrate "who did what to whom and why." Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir, 1982) cert. denied, 461 U.S. 944 (1983). Plaintiff in this case has failed to allege facts supporting a constitutional violation. Instead, plaintiffs' complaint merely contains conclusory allegations that the defendants' actions amounted to a deprivation of First Amendment freedoms. These claims must be rejected. Stripped of the conclusory statements, the factual allegations amount to nothing more than allegations that the Park


Police are enforcing the regulations relating to signs, structures and camping. See 36 C.F.R. 7.96. These actions, which on their face are in accordance with the regulations, simply do not amount to constitutional deprivations.

Arrest. Plaintiffs first claim that plaintiff William Thomas was arrested for disorderly conduct, but never prosecuted, thereby depriving him of his "ability to exercise his First Amendment rights." Amended Complaint, p. 3, 3-5. The plaintiffs do not allege any facts that would show that Mr. Thomas was arrested without probable cause, or that Mr. Thomas was not engaged in disorderly conduct at the time of his arrest. Instead, the plaintiffs merely assert that the United States Attorney's Office declined to prosecute Mr. Thomas. These facts, even if true, fail to demonstrate a constitutional violation.

Signs and Flags. The plaintiffs allege that more than one Park Police officer has indicated to Mr. Thomas that one of his signs, which, in addition to the sign itself, contains several two-by-four "supports" violates the regulations because it is a structure rather than a sign. See Plaintiffs' Exhibit 1, at 1. The plaintiffs fail to describe the sign/structure beyond the conclusory assertion that it is a sign and therefore cannot be a structure. The regulation governing structures and signs is very


specific and detailed, see 36 C.F.R. 7.96(g) (5) (x),[4] and has been upheld against constitutional challenge. See, e.g., Huddle, 1991 U.S. Dist. LEXIS 7070, *8. Only signs that comply with the dictates of the regulation are allowed. Plainly, under the terms of the regulation, if the plaintiff has used supports to create a structure rather than to meet support and safety requirements, his sign violates the regulations. Likewise, if the flags described in the complaint are attached to a sign, and cause the sign to exceed the size limits, the flags would be impermissible.[5] In any event, the complaint does not allege facts which would support a claim of constitutional violation merely on the basis that the officers seek to enforce the sign and structure regulations.

[4 Section 7.96(g)(5)(x)(A)(4) and (B) (2) provide in relevant part as follows:
  • (x) The following are prohibited in Lafayette Park:
  • (A) The erection, placement or use of structures of any kind except for the following:
  • ***
  • (4) For the purpose of this section, the term "structure" includes props and displays . . . furniture and furnishings, such as . . . chairs . . . platforms shelters . . . and other enclosures . . . . Provided however that the term "structure" does not include signs
  • (B) The use of signs except for the following:
  • ***
  • (2) Signs that are not being hand-carried and that are no larger than four [] feet in length, four [] feet in width and one-quarter [] inch in thickness (exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two [ or more sides) may be used in Lafayette Park]

[5 The flags could, however, be hand-held under the regulations.]


Cooler. There is no allegation that plaintiff Picciotto's cooler is in any way expressive activity, thus the First Amendment is not even implicated in this claim. Indeed, it is hard to see how the cooler allegations implicate any constitutional concerns. In any event, the applicable regulations prohibit the "placement or use of structures" (with specific exceptions not applicable here) in Lafayette Park, and define "structure" to include "crates", "boxes and other enclosures" and "similar types of property". 36 C.F.R. 7.96(g)(5)(x). Thus, on its face the regulation would reasonably allow the conclusion that coolers violate the regulation.

Camping. The regulations prohibit camping in Lafayette Park. 36 C.F.R. (i). The camping regulation has been upheld against constitutional challenge. See Clark v. CCNV, 468 U.S. 288 (1984). The plaintiffs' make cursory and conclusory allegations that they are "threatened" with the camping regulation. They have not, however, described the circumstances under which Park Police officers have attempted to enforce the camping prohibition other than to say they have been prodded or that Park Police officers have banged on signs or benches -- presumably to awaken the plaintiffs from sleeping. The regulation plainly prohibits sleeping when it appears that an individual is "using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging." 36 C.F.R.


7.96(i). As with the plaintiffs' other allegations, the camping allegations fall far short of demonstrating a constitutional claim.

Plaintiffs' complaint is also deficient in that they have failed to allege facts supporting any of the defendants' intent to deprive them of their First Amendment rights. Indeed, the facts demonstrate that the officers informed plaintiffs of the apparent violations, and gave them an opportunity to comply with the regulations rather than immediately taking enforcement action. In some instances, according to the plaintiffs, the officers allowed the plaintiffs to continue displaying the nonconforming signs pending further investigation. As the Court of Appeals for this circuit recently explained, where, as in this case, an individually sued federal defendant's subjective intent is at issue, such intent must be pleaded with specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent.Siesert, 895 F.2d at 802; Whitacre v. Davev, 890 F.2d at 1171. Mere conclusory allegations, such as those advanced by the plaintiffs' complaint are insufficient.

As noted above, Bivens plaintiffs must state with specificity the facts demonstrating the alleged deprivation of constitutional rights by each individual defendant. As to the defendants named in the case at bar, the plaintiff has patently failed to do so. As many courts have noted, the requirement for pleading with specificity is especially important when federal


employees are sued for actions arising out of their federal employment, because such employees - - particularly law enforcement officers -- are extremely vulnerable to retaliatory lawsuits. See Harlow v. Fitzserald, 457 U.S. 800, 814 (1982); Butz v. Economou, 438 U.S. 478, 507-508 (1978). Thus, "complaints containing only 'conclusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed." Hobson, 737 F.2d at 14, quoting Ostrer v.Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). Because plaintiffs have failed to satisfy the heightened pleading standard applicable to Bivens plaintiffs, their Bivens claims against all of the individual defendants must be dismissed.

B. All of the Defendants Are
Entitled to Oualified Immunity.

All of the defendants are entitled to qualified immunity from any of the claims which the Court does not otherwise dismiss. The Supreme Court established the framework for analyzing a claim of qualified immunity by a federal official sued in his individual capacity in Harlow v. Fitzserald, 457 U.S. 800 (1982). In Harlow, the Court made clear that government officials are

shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 818. Under Harlow this determination requires an objective, not subjective analysis. McSurely v. McClellan, 697 F.2d 309, 316 (D.C. Cir. 1982). Harlow thus places squarely on


the plaintiff the burden of showing a nprima facie case of defendants' knowledge of impropriety, actual or constructive." Krohn v, United States, 742 F.2d 24, 31-32 (Ist Cir..1984); Davis v. Scherer, 468 U.S. 183, 191 (1984). Furthermore, as the Supreme Court has more recently held:

Unless the plaintiff's allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity
is entitled to dismissal before the commencement of discovery.

Mitchell v. Forsvth, 472 U.S. 511, 526 (1985).[6]

Neither the Court nor the plaintiff can engage in an inquiry into the state of mind of the individual defendant in resolving the "threshold" resolution of qualified immunity claims. Harlow, supra, 457 U.S. at 818. Subjective inquiries are legally irrelevant. The only inquiry of any import is whether the defendants' alleged actions violated clearly established law or were objectively reasonable.

As the Supreme Court and the Court of Appeals have recently explained,

  • [t]he contours of the right [the official is alleged to have violated] must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.

Anderson v. Creishton, 107 S. Ct. 3034, 3038 (1987); Martin v. Malhovt, 830 F.2d at 253. Thus, the Supreme Court held in Anderson that even though plaintiff's Fourth Amendment rights

[6 A defendant's right is to "immunity from suit" not a "defense to liability." Id.]


were violated in that case, the defendant officers were entitled to assert and obtain qualified immunity from suit individually if they could show they acted reasonably. As the Supreme Court explained in another case, qualified immunity protects from suit "all but the plainly incompetent or those who knowingly violate the law." Brisss v. Malley, 475 U.S. 335, 341 (1986).

Applying this analysis to the allegations in plaintiffs' amended complaint establishes that each of the defendants are entitled to qualified immunity. None of plaintiffs' allegations demonstrate a knowing violation of a clearly established constitutional right. As discussed above, many of plaintiffs' allegations fail to implicate any constitutional protections, much less "clearly established" rights. Accordingly, each of the defendants are entitled to qualified immunity from suit in their individual capacities, and plaintiffs' claims against them should be dismissed./P>

C. Plaintiffs' Claim for Damages Must Be
Dismissed for Lack of Jurisdiction

In addition to injunctive relief, the plaintiffs seek "nominal monetary damages". Amended Complaint, p. 10. If this Court dismisses the Bivens claims against the individual defendants, it lacks jurisdiction over any claims for money damages. It cannot be disputed that claims for money damages against federal officials in their official capacities are barred by the doctrine of sovereign immunity. Clark v. Library of Conqress, 750 F.2d 89, 103-104 (D.C. Cir. 1984); Kline v. Republic of El Salvador, 603 F.Supp. 1313, 1316 (D. D.C. 1985).


Further, to the extent that plaintiffs' complaint could be read to encompass any common law torts, as explained below, this Court lacks jurisdiction over those claims.

1. The Plaintiffs Cannot Sue Individual
Federal Employees for Common Law Torts
Allegedly Committed Within the Scope
of Their Federal Employment.

Suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. SS 1346(b), 2671, et seq., is the only remedy for an alleged common law tort by a government employee acting within the scope of his or her employment. 28 U.S.C. 2679(b)(1); United States v. Smith, 111 S.Ct. 1180 (1991). Because the Attorney General, through her designee Mark E. Nagle, Acting Chief of the Civil Division of the United States Attorney's Office in the District of Columbia, has certified that the named federal employees were acting within the scope of their office or employment at the time of the incidents out of which these claims arose. the United States must be substituted as the sole defendant for any common law torts. 28 U.S.C. 2679(d)(2).

Section 2679(b) of Title 28, United States Code, as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, provides that:

  • The remedy against the United States provided by section 1346(b) and 2672 of thistitle for injury or loss of property or personal injuryor death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any

    other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

28 U.S.C. 2679(b)(1). Upon certification by the Attorney General or his designee that the individual defendant was acting within the scope of his employment, the action "shall be deemed to be an action or proceeding brought against the United States under the [Federal Tort Claims Act]" for all common law tort claims and "the United States shall be substituted" as the exclusive defendant for those claims. 28 U.S.C. 2679(d)(2).

Pursuant to 28 C.F.R. 15.3 (1988), the Attorney General has delegated his authority to issue certifications under 2679 to United States Attorneys. On January 4, 1995, that authority was redelegated to Mark E. Nagle, Acting Chief of the Civil Division of the United States Attorney's Office in the District of Columbia.

In the case at bar, to the extent that plaintiffs are seeking to recover money damages for common law torts of government employees, their only recourse is suit under the FTCA. Attached hereto as Exhibit 1 is a copy of the certification by Mr. Nagle that Richard Robbins, Stephen O'Neill and Andrew Keness were acting within the scope of their employment at the time of the alleged common law torts. The plaintiff cannot maintain any common law tort claims against the defendants in their individual capacities. United States v. Smith, 111 S.Ct. 1180 (1991). Accordingly, the individually named defendants request that the


claims against them be deemed applicable against the United States pursuant to 28 U.S.C. 1346(b), and that the claims against them be dismissed with prejudice.

2. The Plaintiffs Have Failed to Comply
With the Jurisdictional Requirements
of the FTCA.

The FTCA "is a limited waiver of sovereign immunity making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment." United States v. Orleans, 425 U.S. 807, 813 (1976). "Tort claims against the United States are exclusively cognizable under the [FTCA]. DSI Corp. v. Sec. of Housing and Urban Development, 594 F,2d 177, 180 (9th Cir. 1979); 28 U.S.C. 2679(a).

One of the prerequisites to suit under the FTCA is the filing of an administrative claim. 28 U.S.C. 2675(a). The "requirement of exhaustion of administrative remedies is jurisdictional and is an absolute prerequisite to an action under the FTCA." Foundinq Church of Scientolosv v. Director, etc., 459 F.Supp. 748, 754 (D.D.C. 1978), citing Melo v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974). This jurisdictional requirement cannot be waived. Spradlev v Spaniol, 684 F.Supp. 10, 13 (D.D.C.1988). Plaintiffs have failed to comply with this jurisdictional requirement. (Amended Complaint.) Absent the timely filing of an administrative claim and a denial by the agency (or the passage of six months without a decision by the agency, 28 U.S.C. 2675(a)), this Court lacks jurisdiction. McNeil v. United


States, 113 S. Ct. 1980 (1993). Accordingly, to the extent that the amended complaint can be construed to make a claim for money damages for common law torts, it must be dismissed for lack of subject matter jurisdiction.


For the reasons stated and upon the authorities cited, all of the claims against the individual defendants, and the claims for money damages, should be dismissed.

Respectfully submitted,

ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney

SALLY M. RIDER, D.C. BAR #436588
Assistant United States Attorney

Assistant United States Attorney


Office of the Solicitor