808 F. Supp. 2d 304
D.D.C.
2011

Duane J. JOHNSON, Plaintiff, v. Stephen J. McCOOL et al., Defendants.

Civ. Action No. 11-0119 (RMC).

United States District Court, District of Columbia.

Sept. 9, 2011.

ROSEMARY M. COLLYER, District Judge.

Court in a motion under Section 23-110, but the motion was denied on procedural grounds by Superior Court Judge Robert I. Richter; this denial was affirmed on appeal by the D.C. Court of Appeals. See Mot. at 5-6. Petitioner has not shоwn and cannot show that Section 23-110 is inadequate or ineffective for consideration of this claim, because “[i]t is well-established that the mere denial of relief by the local courts does not render the local remedy inadequate or ineffective.” Joyner v. O‘Brien, No. 09-cv-0913, 2010 WL 199781, at *2 (D.D.C. Jan. 15, 2010); see Corley v. U.S. Parole Comm‘n, 709 F.Supp.2d 1, 5-6 (D.D.C.2009) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)); Morton v. United States, No. 07-cv-5253, 2008 WL 4726051, at *1 (D.C.Cir. June 12, 2008) (per curiam) (stating that appellant “may not challenge his District of Columbia convictions in federal court unless his remedy under D.C.Code § 23-110 is inadequate or ineffective to test the legality of his detention ..., and [t]he § 23-110 remedy ... is not considered inadequate or ineffective simply because the requested relief has been denied“). Mr. Earle provides no reason to find his Section 23-110 remedy inadequate other than the deniаl of his petition by Judge Richter. See Pet. at 5-11. The Court therefore lacks jurisdiction to consider the claim of ineffective assistance of trial counsel.

Mr. Earle next claims that he received ineffective assistancе of appellate counsel. Pet. at 11. The D.C. Circuit has found that this Court may consider a claim that Section 23-110 is an inadequate remedy for such a claim only “after [the petitioner has] moved to recall ‍​‌​​‌‌​‌​‌​​‌​‌​‌​​‌‌‌​​​​​​​​​‌‌‌​‌‌​​‌​‌​​‌‌​​‍the mandate in the D.C. Court of Appeals” and has received a ruling from that court. Williams v. Martinez, 586 F.3d 995, 999 (D.C.Cir. 2009). Because Mr. Earle has not moved to have the D.C. Court of Appeals recall the mandate, this Court cannot yet consider whether his local remedy is inadequate. Sеe Richardson v. Stephens, 730 F.Supp.2d 70, 72-73 (D.D.C.2010) (“Neither an unfavorable ruling nor an offender‘s failure to file a motion to recall the mandate renders his remedy in the District of Columbia Court of Appeals inadequate.“); Johnson v. Stansberry, No. 10-cv-178, 2010 WL 358521, at *2 (D.D.C. Jan. 29, 2010) (denying petition where petitioner “did not move to recall the mandate” and therefore had “not exhausted his local remedies“); Reyes v. Rios, 432 F.Supp.2d 1, 4 (D.D.C.2006) (“Even if petitioner has failed to file a motion to recall the mandate, the availability of such a course preсludes the finding of inadequacy or ineffectiveness required to support his petition in this Court.“). The Court therefore lacks jurisdiction to consider the claim of ineffective assistance of appellate counsel.

IV. CONCLUSION

For the foregoing reasons, the Court will grant the United States’ motion to dismiss. A separate Order consistent with this Memorandum Opinion shall issue this same date.

Duane Joseph Johnson, Petersburg, VA, pro se.

Carl Ezekiel Ross, U.S. Attorney‘s Office, Washington, DC, Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

In this civil action removed from the Superior Court of the District of Columbia, plaintiff Duane J. Johnson, proceeding pro se, sues Superior Court Magistrate Judge Frederick J. Sullivan, former Assistant United States Attorney (“AUSA“) Steven J. McCool, and Attorney Joseph J. Bernard for trover, convеrsion, and breach of contract stemming from their alleged refusal to return his legal property. On January 18, 2011, AUSA Rudolph Contreras, Chief of the Civil Division of the United States Attorney‘s Office for the District of Columbia, certified pursuant to 28 U.S.C. § 2679(d) that Mr. McCool was acting within the scope of his employment at the time of the alleged misconduct. Mr. Johnson has moved to strike the certification, but he has not stated any facts suggesting that Mr. McCool was acting outside the scopе of his employment. Therefore, the Court, finding that the United States is properly substituted, will deny Mr. Johnson‘s motion to strike the certification.1

The United States moves to dismiss the complaint under Rules 8(a) ‍​‌​​‌‌​‌​‌​​‌​‌​‌​​‌‌‌​​​​​​​​​‌‌‌​‌‌​​‌​‌​​‌‌​​‍and 12(b)(6) of the Federal Rules of Civil Procedure [Dkt. #13]. Mr. Johnson has opposed the motion and has moved to remand the case to Superior Court [Dkt. #4]. Upon consideration of the parties’ submissions and the entire record, the Court will grant in part and deny in part the United States’ mоtion to dismiss and will deny Mr. Johnson‘s motion to remand.

I. BACKGROUND

In his one-page complaint filed in Superior Court, Mr. Johnson alleges the following. From December 2009 to July 2010, “each” of the Defendants “received valuable legal property from Plaintiff.” Compl. [ECF Dkt. #1 at 4]. Each defendant was “instructed to return Plaintiff‘s valuable legal property within fifteen day[s] of receipt,” but has “refused to do so.” Id. As a result, Mr. Johnson claims that he has lost revenue and, thus, seeks $250,000 in monetary damages for the loss of his “motions, pleadings, [and] transcripts.” Id.

Mr. Johnson further alleges that Mr. McCool “requested” that he “send him motions, pleadings, and transcripts because he was interested in how plaintiff constructed his documents;” that he sent [Mr. McCоol] his “only versions of his work product;” that he “requested defendant McCool to return [his legal papers] within fifteen days of receipt because it was all that Plaintiff had;” and that Mr. McCool agreed to return the papers but did nоt do so. Pl. Duane Joseph Johnson‘s Opp‘n to Mot. to Dismiss and Opp‘n to Mot. to Show Cause & Mot. to Remand (“Pl.‘s Opp‘n“) [Dkt. #23] ¶¶ 1-6.

II. DISCUSSION

The United States seeks dismissal of the complaint under Rule 8(a) for failure to satisfy the minimal pleading requirements and Rule 12(b)(6) for failure to state а claim upon which relief can be granted. It is clear from the United States’ response that the complaint provides adequate notice of a claim; thus, its motion to dismiss under Rule 8(a) will be denied. See Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir. 2003) (“Rule 8‘s liberal pleading standard requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ ... and courts are charged with construing the complaint ‘so ... as to do substantial justice ....‘“) (citations omitted).

At this pleading stage, a complaint may be dismissed under Rule 12(b)(6) for failure to state a claim upon upon a determination that the plaintiff cannot establish “any set of facts consistent with the allegations in the complaint” to support the alleged violation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). In ruling on a motion to dismiss, a court must treat the complaint‘s factual allegations as true, “even if doubtful in fact.” Id. But it need not accept legal conclusions cast as factual allegations, Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004), or “inferences drawn by [the plaintiff] 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). In addition, a court must construe pro se filings liberally and, absent any indication of prejudice to the defendant, should read “all of the plaintiff‘s filings together[.]” Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999).

The United States contends that Mr. Johnson has stated neither ‍​‌​​‌‌​‌​‌​​‌​‌​‌​​‌‌‌​​​​​​​​​‌‌‌​‌‌​​‌​‌​​‌‌​​‍a breach of contract claim nor a conversion claim.2

1. The Breach of Contract Claim

The Court agrees that Mr. Johnson has not stated a breach of contract claim, see Mem. of P. & A. in Supp. of Def.‘s Mot. to Dismiss (“Def.‘s Mem.“) at 5, but even if he had, this Court would lack jurisdiction over Mr. Johnson‘s claim for $250,000 because a claim of that amount based on an express or implied contract with the United States must be brought in the U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a); § 1346(a)(2) (vesting concurrent jurisdiction in the district court over contract claims not exceeding $10,000). Hence, the Court will grant the United States’ motion to dismiss the breach of contract claim.

2. The Conversion Claim

The United States’ argument that Mr. Johnson has failed to state a conversion claim—for which it may be held liable under the Federal Tort Claims Act, 28 U.S.C. § 2674—is belied by Mr. Johnson‘s unrefuted opposition. Under District of Columbia law, conversion is defined as “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other full value of thе chattel.” Edmonds v. United States, 563 F.Supp.2d 196, 202 (D.D.C.2008) (quoting Fed. Fire Protection Corp. v. J.A. Jones/Tompkins Builders, Inc., 267 F.Supp.2d 87, 92 n. 3 (D.D.C.2003)). “A defendant will be liable for conversion if the plaintiff shows that the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) ovеr the personal property of another, (4) in denial or repudiation of that person‘s rights thereto.” Gov‘t of Rwanda v. Rwanda Working Grp., 227 F.Supp.2d 45, 62 (D.D.C.2002) (citations omitted). “When the initial possession is lawful, the plaintiff must make a demand for the return of the converted goods tо demonstrate the adverse nature of the possession.” Id. (citation omitted).

The United States argues that Mr. Johnson cannot show that an unlawful exercise has occurred because Mr. McCool “did nothing more than retain service copies of legal documents” that Mr. Johnson was required to serve during court proceedings. Def.‘s Mem. at 4-5. Mr. Johnson counters that his claim “does not stem from defendant McCool not returning service copies....” Pl.‘s Opp‘n ¶ 10. Rаther, Mr. Johnson states that he supplied the documents because Mr. McCool had “requested” them and that Mr. McCool had agreed to return the documents within 15 days. Id. ¶¶ 1, 4-5. According to Mr. Johnson, when Mr. McCool failed to return the documents аs he had allegedly agreed, he “requested defendant McCool to return his property.” Id. ¶ 6. The United States has not refuted Mr. Johnson‘s statements, and Mr. Johnson has sufficiently pleaded the elements of conversion. Hence, the Court will deny the United States’ motion to dismiss the conversion claim without prejudice.

III. CONCLUSION

For the foregoing reasons the Court will grant the United States’ motion to dismiss Mr. Johnson‘s breach of contract claim for failure to state a claim and will deny without prejudice the United States’ motion ‍​‌​​‌‌​‌​‌​​‌​‌​‌​​‌‌‌​​​​​​​​​‌‌‌​‌‌​​‌​‌​​‌‌​​‍to dismiss the conversion claim. Consequently, the Court will deny Mr. Johnson‘s motion to remand the case to Superior Court. In addition, the Court will deny Mr. Johnson‘s motion to strike the Westfall certification fоr the reasons stated above and will deny Mr. Johnson‘s remaining pending motions.

A separate Order accompanies this Memorandum Opinion.

ROSEMARY M. COLLYER

United States District Judge

Notes

1
In response to Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), Congress enacted the Westfall Act, which authorizes “an Attorney General or designee who believes that a federal employee was acting within the scope of his employment at the time of the alleged incident [to] issue a certification to that effect.” Haddon v. United States, 68 F.3d 1420, 1423 (D.C.Cir.1995), abrogated on other grounds by Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). “The certification carries a rebuttable presumption that the employee has absolute immunity frоm the lawsuit and that the United States is to be substituted as the defendant.” Wilson v. Libby, 535 F.3d 697, 711 (D.C.Cir.2008) (citations omitted). Because a Westfall certification acts as the government‘s proffer of a prima facie case that at the time of the alleged misconduct, its employee was acting within the scope of his employment, see Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C.Cir.1994), the burden shifts to the Plaintiff “to raise a material dispute regarding the substance of [the certification] by alleging facts that, if true, would establish that [the federal employee] [was] acting outside the scope of [his] employment.” Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.Cir.2003) (citation omitted). Plaintiff must prove by a preponderance of the evidence that such is the case. See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir.1997). Mr. Johnson asserts thаt Mr. McCool “was not lawfully working for the federal government in the capacity of a former government employee or officer of the United States because [he] was never appointed as an [AUSA] in the first instancе.” Mot. for Case Remand, Mem. of P. & A. in Supp. [Dkt. #4] at 2. He cites his complaint in a previous action dismissed by this Court, Johnson v. Sullivan, Civ. Action No. 09-2056(RBW), 748 F.Supp.2d 1, 13 n. 6. (D.D.C.2010) (“The plaintiff‘s challenge of the validity of the certification filed by McCool is meritless.“). Therefore, Mr. Johnson is collaterally ‍​‌​​‌‌​‌​‌​​‌​‌​‌​​‌‌‌​​​​​​​​​‌‌‌​‌‌​​‌​‌​​‌‌​​‍estopped from relitigating the validity of Mr. McCool‘s appointment and the government‘s Westfall certification.
2
The United States has not addressed Mr. Johnson‘s trover claim. Because the trover claim goes hand in hand with the conversion claim, see Blacks Law Dictionary (9th Ed. 2009) (defining trover as “[a] common-law action for the recovery of damages for the conversion of personal property“), it, too, will survive the instant motion to dismiss.
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