                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 RUTH E. RICHARDS,

         Plaintiff,
                 v.                                        Civil Action No. 16-1002 (JDB)
 METROPOLITAN POLICE
 DEPARTMENT OFFICER JENNIFER
 GELSOMINO,

         Defendant.


                          MEMORANDUM OPINION & ORDER

       In this action brought pursuant to 42 U.S.C. § 1983, plaintiff Ruth Richards alleges that

she was arrested by Metropolitan Police Department Officer Jennifer Gelsomino without probable

cause and because of her race and national origin, in violation of the Fourth and Fifth Amendments.

Gelsomino has moved to dismiss, arguing that she is entitled to qualified immunity from Richards’

Fourth Amendment claim and that Richards’ complaint fails to state a claim under the Fifth

Amendment. For the reasons explained below, the Court disagrees. Gelsomino’s motion to

dismiss will therefore be denied.

                                        BACKGROUND

       The following account is taken from Ms. Richards’ complaint. Ms. Richards is a 56-year

old United States citizen. She is black, was born in Jamaica, and speaks with a Jamaican accent.

Compl. [ECF No. 1] ¶¶ 13, 20. In May 2013, she was walking to a friend’s house when she saw

her ex-husband, George Richards, driving down the street. Id. ¶ 16. Mr. Richards pulled his car

alongside Ms. Richards and got out. Id. ¶ 17. So did a passenger, Sharniesha Grady, and Ms.

Grady’s child. Id. Ms. Richards thought that Ms. Grady appeared to be more than 30 years
younger than Mr. Richards. Id. According to the complaint, Mr. Richards then “assaulted Ms.

Richards in the face, and the two had a heated argument.” Id. ¶ 18. A neighbor witnessed the

assault, but was unable to hear the argument. Id. ¶ 19. After telling Mr. Richards that she would

call the police, Ms. Richards left the intersection where the alleged assault occurred and entered

the house of Eva Wood, who is Mr. Richards’ mother. Id. ¶ 21. Mr. Richards, Ms. Grady, and

Ms. Grady’s child entered Grady’s house, which is next door to Ms. Wood’s. Id. ¶ 22. From her

home, Ms. Grady placed a number of calls to 911. Id. ¶ 24. Officer Gelsomino and another officer

soon arrived in separate police cars. Id. ¶ 23. Gelsomino exited her car and went to speak with

Mr. Richards and Ms. Grady. Id. ¶¶ 23, 27. The other officer spoke with Ms. Richards and Ms.

Wood, who informed the officer about the alleged assault and other occasions on which Mr.

Richards had allegedly behaved violently. Id. ¶ 26.

       The situation escalated, however, as Gelsomino approached the porch where Ms. Richards

and Ms. Woods were sitting. Requesting that Ms. Richards step off the porch, Gelsomino asked

her: “Where were you born?” Id. ¶ 28. Ms. Richards responded “I am an American citizen.” Id.

Unsatisfied with Ms. Richards’ answer, Gelsomino repeated her question. Id. When Ms. Richards

responded that she was born in Jamaica, Gelsomino placed her in handcuffs and under arrest

without asking any further questions. Id. ¶ 29. Both Ms. Richards and Ms. Wood asked why Ms.

Richards was being arrested; Ms. Richards pointed out that she had been the victim of an assault

by her ex-husband. Id. ¶ 30. But Gelsomino still provided no explanation for the arrest. Id.

Instead, she asked whether there were any witnesses to the alleged assault. Id. ¶ 31. Told that

there were, just two houses down the street, Gelsomino refused to seek them out, saying “I’m not

going down there.” Id. ¶ 32. As Gelsomino was leading Ms. Richards to the police car, however,

one such witness came to the scene. Id. ¶ 32. This witness indicated that she had seen the



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altercation and that Ms. Richards had indeed been assaulted by her ex-husband. Id. In light of this

new information, the officers placed Mr. Richards under arrest as well but did not release Ms.

Richards. Id. Ms. Richards was held at the police station for 19 hours, without being offered food,

provided with her prescription medications, or allowed to report her arrest to her attorney or family.

See id. ¶¶ 3, 33–37. She was ultimately released—without being charged or told why she had been

arrested in the first place. Id. ¶ 36.

        After being released, Ms. Richards filed a formal complaint with the Office of Police

Complaints (OPC). Id. ¶ 38.         The OPC process culminated with a written decision by an

independent complaint examiner, who found in favor of Ms. Richards on her harassment and

discrimination allegations. See id. ¶¶ 39–40. Specifically, the examiner concluded that Gelsomino

lacked probable cause to believe that Ms. Richards had committed an intra-family offense

involving a threat, see id. ¶ 42; see also D.C. Code § 16-1031(a)(2); that Gelsomino failed to take

the procedural steps necessary to support a warrantless arrest, see id. ¶ 43; and that Gelsomino

discriminated against Ms. Richards based on her national origin, see id. ¶ 45. Ms. Richards quotes

these conclusions in her complaint in this case.

        That complaint alleges that Gelsomino, while acting under color of state law, violated the

Fourth and Fifth Amendments by arresting Ms. Richards without probable cause and because of

her race and national origin.     See 42 U.S.C. § 1983; Compl. ¶¶ 56, 69. Richards (hereinafter

referring to Ms. Richards, unless otherwise specified) has also attached the examiner’s full merits

decision to her complaint.      See OPC Merits Determination [ECF No. 1-4]. The examiner’s

decision, however, includes some factual information that Richards’ complaint does not. For

example, the examiner found that Grady had reported to the 911 operator that Richards “was

talking loudly and making threats in front of her neighbors.” Id. at 2. The examiner also noted



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Grady’s allegation that, in connection with the altercation at the center of this case, Richards had

“approached [Grady] in front of her home aggressively and said ‘Bitch, I’ll smack you.’” Id.

According to the examiner, Gelsomino included this statement in the arrest report. Id.

        Gelsomino now moves to dismiss. See Def.’s Mot. to Dismiss [ECF No. 14]. Relying on

Grady’s allegations as summarized in the examiner’s decision, Gelsomino argues that she is

entitled to qualified immunity from Richards’ Fourth Amendment claim because the arrest was

supported by probable cause. She also argues that Richards’ complaint fails to state a claim under

the Fifth Amendment.

                                       LEGAL STANDARD

        In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court

must presume the truth of a complaint’s factual allegations, although it is “not bound to accept as

true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal quotation marks omitted). The court then asks whether the facts alleged

suffice “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted).       On a motion to dismiss, the court may generally

consider “facts alleged in the complaint, any documents either attached to or incorporated in the

complaint and matters of which [the court] may take judicial notice.” Mpoy v. Rhee, 758 F.3d

285, 291 n.1 (D.C. Cir. 2014) (internal quotation marks omitted).

                                             ANALYSIS

        The first task in this case is to identify the set of factual allegations that must be taken as

true for purposes of Gelsomino’s motion to dismiss. Gelsomino argues that, by attaching the

examiner’s decision to her complaint, Richards has incorporated all of its factual content into her

complaint, thus allowing the Court to accept all that as true. See Def.’s Reply [ECF No. 17] at 1–



                                                   4
2. As a result, Gelsomino argues, the Court should consider Grady’s account—that Richards “was

talking loudly and making threats,” including a threat to “smack” Grady—as it is set out in the

examiner’s decision. Richards, of course, disagrees. She asks the Court to disregard these alleged

statements for present purposes, because she has “never asserted or accepted” them as true. Pl.’s

Opp’n [ECF No. 16] at 9.

       Federal Rule of Civil Procedure 10(c) permits a plaintiff to attach an exhibit to her

complaint, thus making the exhibit “a part of the pleading for all purposes.” But, as the D.C.

Circuit has recently observed, the “incorporation by reference doctrine has limits.”      Banneker

Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015). Indeed, several circuits “have

rejected the ‘fantastic argument’ that ‘all facts contained in any attachments to a complaint are

automatically deemed facts alleged as part of the complaint.’” Id. (quoting Carroll v. Yates, 362

F.3d 984, 986 (7th Cir. 2004)). “Rule 10(c) ‘does not require a plaintiff to adopt every word within

the exhibits as true for purposes of pleading simply because the documents were attached to the

complaint to support an alleged fact.’” Id. (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of

South Bend, 163 F.3d 449, 454–56 (7th Cir. 1998)). When considering what facts to accept as

true, therefore, “it is necessary to consider why a plaintiff attached the documents, who authored

the documents, and the reliability of the documents.” Id. at 412–13 (internal quotation marks

omitted); accord Goines v. Valley Comm. Servs. Bd., 822 F.3d 159, 167 (4th Cir. 2016).

       Richards’ complaint walks a fine line when using the examiner’s decision. On the one

hand, she plainly wants to make the Court aware of the examiner’s conclusions, which she believes

“support” her constitutional claims. Compl. ¶ 6. She also wants the Court to know that the

examiner reached her conclusions after a “full investigation” of the facts, including conducting

interviews and gathering evidence. Id. ¶ 5; see also id. ¶¶ 39, 59, 72. But that does not mean that



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Richards has implicitly adopted all of the decision’s factual content into her complaint. Richards’

view of the arrest, and her related allegations, are the foundation of her complaint—“no portion of

any of [her] claims is dependent upon the truth of any statements contained in” the examiner’s

decision. Goines, 822 F.3d at 168. Richards comes closest to relying on the decision’s factual

content when she quotes sections referring to Grady’s account of the incident, including the alleged

threats that Gelsomino now seeks to rely on in support of a finding of probable cause. See, e.g.,

Compl. ¶ 54 (“The OPC also finds that ‘the circumstantial evidence illustrates Ms. Grady herself

was not particularly concerned about the words that had been uttered, such that Officer

Gelsomino’s assessment of having probable cause to arrest for an intrafamily offense involving a

threat is not reasonable.’” (brackets omitted) (first emphasis added)); id. (“The OPC explains that

Ms. Grady was ‘quite calm’ on the 911 recording in asking how the officer was and in saying that

it was not an emergency.” (emphasis added)).

       But in the Court’s view, Richards’ complaint stops well short of incorporating the

statements in the examiner’s decision themselves. These paragraphs of Richards’ complaint are

best read as a “preemptive acknowledgement of the defense” case—i.e., Richards is noting that,

even if she did threaten to “smack” Grady, and even if Grady did report that threat to the 911

dispatcher and to Gelsomino, the examiner still concluded that Richards’ arrest was discriminatory

and unsupported by probable cause. See Goines, 822 F.3d at 169–70. This “may be unusual as a

matter of pleading style,” but it does not “support a Rule 12(b)(6) dismissal in the face of disputed

facts.” Id. at 170. And here, the relevant facts are indeed disputed. Richards claims that she never

threatened to “smack” Grady at all. Pl.’s Opp’n at 12. Grady’s contrary allegation—apparent ly

conveyed to the 911 dispatcher and to Gelsomino, who apparently also included it in her arrest

report—is the foundation of Gelsomino’s motion to dismiss. See OPC Merits Determination at 2.



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The examiner’s decision, which was reached without the benefit of a statement from Gelsomino

herself, is the Court’s only window into these conversations. Id. at 4. The 911 call and the arrest

report are not a part of the record. Thus, the Court has little ability to resolve this factual dispute,

and a motion to dismiss is not the proper vehicle for doing so in any event (indeed, ultimately it

may not even be the Court’s role to do so). In the analysis below, the Court will accept as true the

allegations in Richards’ complaint and give her “the benefit of all reasonable inferences derived

from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8,

17 (D.C. Cir. 2008) (internal quotation marks omitted). Here, that means rejecting Gelsomino’s

invitation to rely on factual information contained in the examiner’s decision but not also

incorporated into Richards’ complaint.

        As a defense to Richards’ Fourth Amendment claim, Gelsomino invokes qualified

immunity.   “The doctrine of qualified immunity protects government officials 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.” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (internal quotation marks omitted). “Qualified immunity gives government

officials breathing room to make reasonable but mistaken judgments, and protects all but the

plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S. Ct. 3, 5

(2013) (per curiam) (internal quotation marks omitted). For a constitutional right to be clearly

established, existing precedent must have placed the constitutional question “beyond debate,”

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted), such

that “any reasonable official in the defendant’s shoes would have understood that [she] was

violating it,” Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015) (quoting Plumhoff v. Rickard, 134 S.

Ct. 2012, 2023 (2014)). “[C]learly established law should not be defined at a high level of



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generality.” White, 137 S. Ct. at 552 (internal quotation marks omitted). Instead, a court should

focus on the issue “‘in light of the specific context of the case.’” Lash, 786 F.3d at 6 (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)).

       Here, Richards claims that Gelsomino violated the Fourth Amendment by arresting her

without a warrant or probable cause. To comport with the Fourth Amendment, a warrantless arrest

outside the home “must be predicated on particularized probable cause.” Barham v. Ramsey, 434

F.3d 565, 573 (D.C. Cir. 2006). “In determining whether probable cause exists, courts examine

‘the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of

the arrest.’” Garay v. Liriano, 943 F. Supp. 2d 1, 18 (D.D.C. 2013) (quoting Devenpeck v. Alford,

543 U.S. 146, 152 (2004)).       “Probable cause exists where the arresting officer possesses

information ‘sufficient to warrant a prudent person in believing that the suspect has committed or

is committing an offense.’” United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996) (alterations

omitted) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

       Richards has adequately alleged a violation of the Fourth Amendment.             Taking the

allegations of her complaint as true, Gelsomino did not see the altercation between Mr. and Ms.

Richards. Arriving at the scene after the fact and in response to a 911 call, she spoke first with

Mr. Richards and Ms. Grady. The complaint contains few allegations shedding light on the content

of the 911 call or Gelsomino’s conversation with Mr. Richards and Ms. Grady. For the reasons

stated above, moreover, the Court will not consider any factual information contained in the

examiner’s decision but not adopted in Richards’ complaint. Nor, at the motion to dismiss stage,

will it draw inferences favorable to Gelsomino, the defendant, about what the content of those

conversations may have been. Proceeding, thus far, without any reason to believe that Richards

had committed a crime, Gelsomino approached her. She asked only one question, “Where were



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you born?” When Richards replied that she was born in Jamaica, Gelsomino arrested her. But

being born in Jamaica is not a crime. According to the complaint, Gelsomino asked no other

questions and performed no additional investigation that would illicit information regarding

possible criminal activity by Richards. Because the warrantless arrest, as alleged, was founded on

a total absence of inculpatory information, it violated the Fourth Amendment. And, as alleged,

such a baseless arrest raises the specter of plain incompetence or of a knowing violation of the law.

See Stanton, 134 S. Ct. at 5.

        Gelsomino does not separately argue that the constitutional right invoked by Richards was

not “clearly established.” Richards, for her part, notes that it “is well settled that an arrest without

probable cause violates the fourth amendment.” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir.

1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)); see also Compl. ¶ 58. Limited at this

early stage to the allegations in Richards’ complaint, that may indeed be as precise a framing of

the constitutional right as is possible. Cf. Pearson, 555 U.S. at 238–39 (“When qualified immunity

is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be

hard to identify.”). On the facts as currently alleged, then, Gelsomino is not entitled to qualified

immunity because she violated a clearly established constitutional right when she arrested

Richards without a warrant or probable cause. That being said, the Court remains cognizant of the

Supreme Court’s instruction to define the relevant right within the “particularized” facts of the

case. See White, 137 S. Ct. at 552 (internal quotation marks omitted). Should Gelsomino revive

her qualified immunity defense at the summary judgment stage, after further factual development,

she will be entitled to a more contextualized assessment of the constitutional right at issue.

        Richards has also adequately alleged a violation of the Fifth Amendment right to equal

protection of the law. The equal protection component of the Fifth Amendment “prohibits



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selective enforcement of the law based on considerations such as race” or national origin. Whren

v. United States, 517 U.S. 806, 813 (1996). “Where the claim is invidious discrimination” in

violation of the Fifth Amendment, plaintiff must allege that “the defendant acted with

discriminatory purpose.” Iqbal, 556 U.S. at 676; see also Atherton v. District of Columbia Office

of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009); Fernandors v. District of Columbia, 382 F. Supp.

2d 63, 69 (D.D.C. 2005). In other words, plaintiff must plausibly allege that the defendant took

the challenged action “because of, not merely in spite of,” her race or national origin. Iqbal, 556

U.S. at 677–78 (internal quotation marks omitted).

        Here, Richards has alleged facts that, when accepted as true, are sufficient to give rise to a

plausible inference of purposeful discrimination. According to the complaint, Gelsomino asked

only one question when approaching Richards. The question was about Richards’ national origin.

She did not ask Richards about the incident described in the complaint, and she showed little

interest in talking with individuals who had witnessed it. When asked by Richards and Wood to

provide a reason for the arrest, Gelsomino declined. Viewed collectively, Gelsomino’s alleged

interest in Richards’ national origin, her alleged disinterest in the details of the altercation, and her

refusal to provide an explanation for Richards’ arrest give rise to a plausible inference that

Gelsomino acted on the basis of race or national origin.

        Gelsomino does not appear to raise a qualified immunity defense to Richards’ Fifth

Amendment claim. Perhaps she believes that to be unnecessary, in light of her argument that the

arrest was supported by probable cause. But if so, she is mistaken. Even an arrest supported by

probable cause can violate the Fifth Amendment’s guarantee to equal protection. See Whren, 517

U.S. at 813. In any event, the right that Richards seeks to vindicate is clearly established. See,

e.g., Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010) (“It hardly passes the straight-



                                                   10
face test to argue at this point in our history that police could reasonably believe they could treat

individuals disparately based on their race.”).

                                         CONCLUSION

        Based on the consideration of the parties’ memoranda, the applicable law, and the entire

record herein, and for the reasons explained above, it is hereby ORDERED that [14] defendant’s

motion to dismiss is DENIED. A separate Order setting an Initial Scheduling Conference will

issue on this date.

                                                                            /s/
                                                                     JOHN D. BATES
                                                                United States District Judge
Dated: March 3, 2017




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