Jones v. United States of America , 934 F. Supp. 2d 284 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
TRESHAWN V. JONES )
)
Plaintiff, )
) Civil Action No. 11-2116(EGS)
v. )
)
UNITED STATES OF AMERICA, et al.,)
)
Defendants. )
)
MEMORANDUM OPINION
This case is before the Court on defendants’ Motion to
Dismiss or, in the alternative, for Summary Judgment. Upon
consideration of the motion, the opposition and reply thereto,
the entire record, and for the reasons explained below,
defendants’ motion to dismiss or, in the alternative, for
summary judgment is DENIED as to Counts I through IV of the
complaint. Defendants’ motion for summary judgment is GRANTED
as to Count V of the complaint.
I. BACKGROUND
In her Complaint, plaintiff brings several claims arising
from a January 28, 2009 traffic stop that occurred in the
District of Columbia. Plaintiff alleges that she was traveling
near Southern Avenue and Galveston Street, S.E. with her minor
child in the vehicle. Compl. ¶ 5. Plaintiff states that as she
approached the intersection, she noticed that her sister’s
fiancé, Eric Herrion, was a passenger in a vehicle that had been
stopped by Officer Yeliz Kadiev, a law enforcement officer
employed by the United States Park Police. Compl. ¶ 4, 5.
Plaintiff stopped her vehicle near the intersection and
exited her car. Compl. ¶ 6. Plaintiff states that as she got
out of her car, Officer Kadiev “began yelling and screaming at
the plaintiff to get back her car.” Id. At the same time,
plaintiff’s daughter ran to Mr. Herrion, who was in the
passenger side of the vehicle that had been stopped. Id.
Plaintiff states that Officer Kadiev “became even more irate
even as the plaintiff attempted to explain the situation to
her.” Id. Plaintiff alleges that as she attempted to lead her
daughter back to their car, Officer Kadiev “accosted the
plaintiff, who was pregnant at the time, by pushing, manhandling
and taking her to the ground.” Id. ¶ 7. Plaintiff further
states that she was placed in handcuffs, arrested, and taken to
jail. Id. Plaintiff was charged with disorderly conduct and
failure to obey. Id. ¶ 8. Following a bench trial in the
District of Columbia Superior Court, plaintiff was acquitted of
all charges on October 7, 2009. Id.
Plaintiff states that she filed a notice of claim with the
United States on January 28, 2011 by filing a Standard Form 95
with the National Park Service of the Department of the
2
Interior. Id. ¶ 9. Plaintiff’s claim was denied on May 25,
2011. Id. Plaintiff then filed this suit on November 28, 2011.
II. STANDARD OF REVIEW
A. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks and citations omitted).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
speculative level.” Id.When ruling on a Rule 12(b)(6) motion, the Court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
3
must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.” Id. “[O]nly a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
B. Summary Judgment
Summary judgment is appropriate when the moving party
demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571
F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of
material fact, the nonmoving party must demonstrate—through
affidavits or other competent evidence, Fed. R. Civ. P.
56(c)(1)—that the quantum of evidence “is such that a reasonable
jury could return a verdict for the nonmoving party.” Steele v.
Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson,
477 U.S. at 248). While the Court views all facts in the light
most favorable to the nonmoving party in reaching that
determination, Keyes v. District of Columbia, 372 F.3d 434, 436
(D.C. Cir. 2004), the nonmoving party must nevertheless provide
more than “a scintilla of evidence” in support of its position,
Anderson, 477 U.S. at 252. But “[i]f material facts are at
issue, or, though undisputed, are susceptible to divergent
4
inferences, summary judgment is not available.” Kuo–Yun Tao v.
Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
III. DISCUSSION
A. Evidence Properly Before the Court
Rule 56 allows a party seeking or opposing summary judgment
to “object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). Plaintiff objects on the
basis of inadmissibility to several of the statements in
defendants’ Local Rule 56.1 statement of material facts not in
dispute. Plaintiff does not explain the basis for her
objections, merely responding that “there is no admissible
evidence” in the record to support several statements.
Plaintiff’s argument focuses on two documents: the transcript
from her trial in Superior Court and the criminal incident
report of her arrest.
At the summary judgment stage, a party is not required to
produce evidence in a form that is admissible, but the evidence
must be capable of being converted into admissible evidence at
trial. Gleklen v. Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000); see also America v. Mills, 654
F. Supp. 2d 28, 35 (D.D.C. 2009) (finding that “if it is
possible to convert evidence into a form that would be
admissible at trial,” the court may consider it for summary
5
judgment); see Richards v. Option One Mortgage, No. 08 Civ. 0007
(PLF), 2009 WL 2751831, at *1 n. 3 (D.D.C.2009) (explaining that
hearsay statements may be converted into admissible evidence if
a witness with personal knowledge can testify to them at trial).
Accordingly, to the extent that the evidence cited by defendants
can be converted into admissible evidence, it can be considered
on summary judgment.
The nature of plaintiff’s Rule 56(c)(2) objection to the
admissibility of portions of the trial transcript is unclear.
To the extent that plaintiff is objecting to the authenticity of
the trial transcript, defendants have attached to their reply a
copy of the court reporter’s certification of the transcript,
see Defs.’ Reply, Ex. 8, and the Court finds that this is
sufficient to establish the authenticity of the trial transcript
for purposes of summary judgment. See Fed. R. Evid. 901 (the
requirement of authentication is satisfied if the proponent
produces “evidence sufficient to support a finding that the item
is what the proponent claims it is”); Mills, 654 F. Supp. 2d at
34 (on summary judgment, the Court “need not find that the
evidence is necessarily what the proponent claims, but only is
that there is sufficient evidence so that the jury ultimately
might do so”). If, instead, plaintiff seeks to object to the
use of a transcript at trial, rather than live evidence, that
argument also fails because such testimony can be “converted”
6
into admissible live testimony if the witness in question
testifies at the trial. See Richards, 2009 WL 2751831, at *1
n.3. Plaintiff makes no argument that any of the Superior Court
trial witnesses would be unavailable for this trial.
Accordingly, the Court finds that the trial transcript is
properly cited as evidence in support of summary judgment.
The Court also finds that the use of the police report is
also proper under Rule 56(c)(2). Defendants have properly
established the authenticity of the police report in an
affidavit submitted with their Reply. See Defs.’ Reply, Ex. 9.
To the extent that plaintiff is also challenging the police
record as hearsay, this argument also fails. As an initial
matter, and although not argued by either party, the Court finds
that the report would likely be admissible as a business record
under Federal Rule of Evidence 803(6) or a public record under
Rule 803(8). The Court also notes that while many of the
statements contained within the police report are “out-of-court”
statements, it does not appear that they are being used in this
context to “prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). Rather, the statements are being offered by the
defendants to establish that certain statements were made and
their effect on the listener, Officer Kadiev. Ali v. D.C.
Government, 810 F. Supp. 2d 78, 83 (D.D.C. 2011) (rejecting Rule
56(c)(2) objection to certain statements and documents that were
7
offered on summary judgment for non-hearsay purposes such as the
effect on the listener). Similarly, to the extent that any of
plaintiff’s own statements in the report are being offered for
their truth, such statements would likely also be admissible in
this case as admissions by party opponent. See Fed. R. Evid.
801(d)(2).
In view of the Court’s finding that plaintiff’s Rule
56(c)(2) objections fail, and because plaintiff failed to
otherwise object to certain statements by citing to record
evidence as required by Local Civil Rule 7(h)(1), the Court will
deem the following statements to have been admitted by the
plaintiff:
• The driver, identified as Bradley Cleveland, was also using
a cell phone to send one or two text messages as he was
stopped. Defs.’ SOF ¶ 7 (citing Tr. 27-29; Suppl. Crim.
Incident Report, Block 7).
• Plaintiff, while engaged with the officer, encouraged and
aided the seven-year-old passenger (Plaintiff’s daughter)
to approach the passenger in the Mercury (Eric Herrion),
where he hugged the child, putting his arm into the coat
before the child departed. Defs.’ SOF ¶ 10 (citing Tr. 26-
30, 37-39, 47-48, 58-60; Suppl. Crim. Incident Report,
Block 7). 1
1
Plaintiff partially disputes this statement, also citing to the
trial transcript, and alleges that “[i]n fact, Mr. Herrion
specifically testified that the plaintiff was handcuffed and on
the ground before the child ever got out of the car.” Pl.’s SOF
¶ 10. The Court finds that this does not create a material
issue of fact. Even if plaintiff had already been restrained,
she still could have been able to tell her daughter to go to Mr.
Herrion.
8
• Plaintiff then attempted to usher the girl from the area
and the girl was driven away from the scene by her other
family members who had also arrived at the scene of the
stop. Defs.’ SOF ¶ 11 (citing Compl. ¶¶ 6-7; Suppl. Crim.
Incident Report, Block 7).
• Officer Kadiev detected the strong odor of marijuana as Mr.
Herrion was removed from the Mercury and she located a
small piece of green plant material consistent with
marijuana on the passenger-side floor of the Mercury.
Defs.’ SOF ¶ 12 (citing Suppl. Crim. Incident Report, Block
7).
• Officer Kadiev also took the cell phone from Mr. Cleveland
and observed that one of the text messages read “Southern
Ave. I’m dirty.” Defs.’ SOF ¶ 13 (citing Suppl. Crim.
Incident Report, Block 7).
B. Counts I through IV
Plaintiff brings four claims against the United States:
Count I (False Arrest/False Imprisonment); Count II (Intentional
Infliction of Emotional Distress); Count III (Assault &
Battery); and Count IV (Malicious Prosecution). Defendants
argue that the claims against the United States are untimely
because they were not filed in this Court within the requisite
time period set forth by the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671, et seq. Defs.’ Mot. at 21. The parties do
not dispute that the FTCA applies to this case. See Pl.’s Opp.
at 15.
The FTCA “requires that claims be presented to the agency
in question within two years of accrual, and filed in court
within six months after denial by the agency.” Mittleman v.
United States, 104 F.3d 410, 413 (citing 28 U.S.C. § 2401(b)).
9
Specifically, the six month limit runs from the “date of
mailing, by certified or registered mail, of the notice of final
denial of the claim by the agency to which it was presented.”
28 U.S.C. § 2401(b). Defendants argue that because plaintiff
alleges that her claim was “denied by letter on May 25, 2011,”
plaintiff was required to file her complaint by November 25,
2011. Because the complaint was not filed until November 28,
2011, defendants argue that plaintiff’s claims against the
United States are untimely.
A defendant bears the burden of proving that an action is
untimely and, once the defendant satisfies that burden, the
burden shifts to the plaintiff to assert that equitable
principles justify avoidance of the defense. Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997). By citing to the
only date set forth in plaintiff’s complaint regarding the
letter, May 25, 2011, defendant has carried its burden of
establishing that plaintiff’s claim is untimely. The Court
finds, therefore, that the burden shifts to the plaintiff to
establish that the complaint was timely filed.
Plaintiff argues that she was permitted to file her
complaint on November 28, 2011 because the Clerk’s Office was
inaccessible on November 25, 2011, the day after Thanksgiving,
as a result of an administrative order by the Chief Judge
closing the United States District Court for the District of
10
Columbia, including the Clerk’s Office. Defendants do not
dispute that an order was issued, but disagree as to its effect.
Federal Rule of Civil Procedure 6(a)(3) provides that
“Unless the court orders otherwise, if the clerk’s
office is inaccessible:
(A) on the last day for filing under Rule 6(a)(1),
then the time for filing is extended to the first
accessible day that is not a Saturday, Sunday, or
legal holiday; . . . .
Fed. R. Civ. P. 6(a)(3). Plaintiff argues that because the
Clerk’s Office was closed on November 25, 2011 as a result of
the Chief Judge’s order, the Clerk’s Office was “inaccessible”
and plaintiff was permitted to file her complaint on the
following Monday, November 28, 2011.
Defendant argues that plaintiff misunderstands the meaning
of “inaccessible” in Rule 6(a)(3). Defendant argues that even
if the Court was in recess, the Clerk’s Office has an after-
hours depository that was open to accept filings. 2 Defendant
argues that in this context, “inaccessible” refers to instances
of inclement weather and not simply the closing of the Court for
other reasons. Defendant argues that the mere “closing” of the
Court, as opposed to, for example, a presidential executive
2
The Court notes that defendants have provided no evidence in
support of the statement that the 24-hour drop box remained open
on November 25, 2011, stating only without any citation that
they have “verified” with the Clerk’s Office that “even if the
Court was in recess on the Friday after Thanksgiving, the Court
was open to accept filings in an after-hours depository.”
11
order designating November 25, 2011 as a “holiday” bars
plaintiff from arguing that her complaint was timely filed.
In a case not cited by either party, this Circuit expressly
rejected the argument that the Clerk’s Office was not
“inaccessible” on a day that the office was closed because
filings could still theoretically have been made in the 24-hour
drop box. See Tel. and Data Sys., Inc. v. Amcell F Atlantic
City, Inc., 20 F.3d 501, 501 (D.C. Cir. 1994). 3 In that case,
the Clerk’s Office and the Court had been closed due to
inclement weather. The Circuit found that the argument
regarding the drop box to be “plainly inconsistent” with the
“considerations of liberality and leniency which find expression
in Rule 6(a).” Id. (citing Union Nat. Bank v. Lamb, 337 U.S.
38, 41 (1949); accord Keyser v. Sacramento City Unified School
Dist., 265 F.3d 741, 747 (9th Cir. 2001) (holding that
regardless of whether the day after Thanksgiving was a legal
holiday, “the fact that the Clerk’s office was closed was
sufficient to make it ‘inaccessible’” under Federal Rule of
Appellate Procedure 26(a)(3), which is identical to Federal Rule
of Civil Procedure 26(a)(3)). Similarly, the Court finds that
the fact that the Clerk’s Office was closed on November 25, 2011
pursuant to the Chief Judge’s order is sufficient to render it
3
The Court is troubled by the parties’ failure to cite this
case, which is Circuit precedent that is binding upon this
Court.
12
“inaccessible” under Rule 6(a). Accordingly, plaintiff’s
complaint was timely filed on November 28, 2011, the next day
that the Clerk’s Office was open. Because defendants have
offered no other basis for dismissing Counts I through IV,
defendants’ motion to dismiss or, in the alternative, for
summary judgment, is DENIED. 4
C. Count V
In Count V of the Complaint, titled “Deprivation of Civil
Rights, 42 U.S.C. § 1983,” plaintiff alleges that Officer Kadiev
violated her Fourth Amendment rights to be free of unreasonable
seizure in the form of unlawful arrest and malicious
prosecution, 5 and by Officer Kadiev’s use of excessive force.
Compl. ¶¶ 23-26.
4
Because the Court has found that plaintiff’s complaint was
timely filed on November 28, 2011, the Court does not reach
plaintiff’s alternative argument regarding the difference
between the date of the letter versus the actual date the letter
was mailed. Neither party argued that the letter was mailed
before May 25, 2011, rendering the date of mailing moot for
purposes of this motion.
5
Neither party focuses on plaintiff’s related allegation of
malicious prosecution, also included in Count V. Because
plaintiff did not raise that issue in opposition to defendants’
motion for summary judgment on Count V, the Court will deem the
issue conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain
arguments raise by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”)
(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1987)).
13
1. Section 1983 is Inapplicable
As an initial matter, and as argued by the defendants, this
claim suffers from a fatal flaw. Specifically, Section 1983
claims can only arise from actions taken under color of state
law. See, e.g., Abramson v. Bennett, 707 F. Supp. 13, 16
(D.D.C. 1989), aff’d 809 F.2d 291 (D.C. Cir. 1989). Because
Officer Kadiev was a member of the United States Park Police,
she is a federal employee, and plaintiff cannot state a claim
against Officer Kadiev under Section 1983.
In her opposition, plaintiff concedes that Section 1983 is
“not applicable to this case.” Pl.’s Opp. at 9. Plaintiff
argues, however, that the Court is “not bound by plaintiff’s
characterization of the action” and that Officer Kadiev “can be
held responsible for her constitutional torts consistent with
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).” Id.Plaintiff argues that Count V states a claim for a violation of
the Fourth Amendment due to unlawful seizure and excessive
force, and that those claims are actionable under Bivens.
Because the Court is required to construe plaintiff’s claims in
the light most favorable to her, see Anderson, 477 U.S. at 255
and Kowal, 16 F.3d at 1276, the Court will construe Count V of
plaintiff’s complaint as arising under Bivens, rather than
Section 1983.
14
2. Qualified Immunity
Officer Kadiev asserts the defense of qualified immunity.
Qualified immunity is “an immunity from suit rather than a mere
defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227
(1991). Since the immunity exists to shield properly-acting
government officials from suit, it should be granted or denied
at the earliest possible stage in the litigation. Id. It is
therefore appropriate to rule on the issue of immunity on a
properly supported motion for summary judgment. Butz v.
Economou, 438 U.S. 478, 508 (1978). Because the Court finds
that there is no genuine dispute of material fact in this case,
summary judgment is the appropriate forum to resolve a qualified
immunity defense. See Seigert v. Gilley, 500 U.S. 226, 231.
Qualified immunity shields 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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine of 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.’”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants are
entitled to qualified immunity unless the plaintiffs alleged (1)
15
a violation of a constitutional right that (2) was “clearly
established” at the time of violation. Saucier v. Katz, 533
U.S. 194, 201 (2001), limited on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009). In other words, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088,
2093 (2012). Courts may “exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S.
223, 236 (2009). In determining whether the legal rules at
issue are clearly established, a court must look to “cases of
controlling authority in [its] jurisdiction.” Wilson v. Layne,
526 U.S. 603, 617 (1999). If there is no such controlling
authority, then the Court must determine whether there is “a
consensus of cases of persuasive authority.” Id. Once a
defendant asserts a defense of qualified immunity, the burden
then falls to the plaintiff to show that the official is not
entitled to qualified immunity. Winder v. Erste, --- F. Supp.
2d ----, 2012 WL 5863494, at *5 (D.D.C. Nov. 19, 2012).
Accordingly, the inquiry here is not whether Officer
Kadiev’s conduct violated plaintiff’s Fourth Amendment rights.
Rather, the dispositive question is whether, given the
circumstances presented, a reasonable police officer would have
16
known that her conduct violated plaintiff’s clearly established
Fourth Amendment rights.
a. Officer Kadiev Is Entitled to Qualified Immunity With
Respect to the Restraining and Handcuffing of
Plaintiff
As discussed above, Officer Kadiev is entitled to qualified
immunity if a reasonable officer could believe that her actions
were lawful, in light of clearly established law and the
information the officer possessed. As the Supreme Court has
explained, “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,” violates the
Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397 (1989).
Defendants argue that under clearly established law,
Officer Kadiev was entitled to restrain a person involving
herself in a potential crime scene. Defs.’ Mot. at 20-21;
Defs.’ Reply at 7 (citing, e.g., Muehler v. Mena, 544 U.S. 93,
98-99 (2005); United States v. Jones, 973 F.2d 928, 931 (D.C.
Cir. 1992) vacated in part on other grounds 997 F.2d 1475 (D.C.
Cir. 1993)). In Muehler, the Supreme Court held that the
detention of an occupant of a home during the execution of a
search warrant was justified to minimize the risk of harm to
officers and other occupants. The Court held that the use of
handcuffs to detain the occupant to effectuate the detention was
reasonable because the governmental interests in safety
outweighed the intrusion on the occupant, and denied the
17
occupant’s Section 1983 claim. Similarly, in Jones, this
Circuit held that the subject of an investigative Terry stop may
be ordered to the ground, handcuffed, and transferred to a
police car without the stop becoming an unlawful seizure or an
arrest, so long as the conduct was reasonable. Where the
suspect had not obeyed police orders and had tried to flee, law
enforcement’s conduct in detaining him did not violate his
Fourth Amendment rights. The other case law cited by defendants
also supports the right of law enforcement to use reasonable
force to detain a person in the appropriate circumstances. See
United States v. Wilson, 36 F.3d 127, 1994 WL 408264 (D.C. Cir.
1994) (Terry stop and subsequent tackling of suspect was
warranted when he dropped his only piece of luggage in train
station and tried to flee after officers introduced themselves
to him); United States v. Vaughn, 22 F.3d 1185, 1994 WL 119002(D.C. Cir. 1994) (when subject of Terry stop quickly thrust his
hand into pocket upon seeing police approaching, and did not
remove his hand upon request, it was reasonable for officer to
use force to remove his hand from his pocket); see also United
States v. Laing, 889, F.2d 281, 285 (D.C. Cir. 1989) (the “force
used to carry out the stop and search must be reasonable, but
may include using handcuffs or forcing the detainee to lie down
to prevent flight”).
18
Plaintiff makes no effort to distinguish the case law cited
by defendants. In response to defendants’ arguments, plaintiff
simply argues that “force without reason is unreasonable” and
cites several cases that are not on point. See Pl.’s Opp at 15
(citing Johnson v. District of Columbia, 528 F.3d 969, 976-77
(D.C. Cir. 2008); DeGraff v. District of Columbia, 120 F.3d 298,
302 (D.D.C. 1997)). In Johnson, this Circuit held that an issue
of fact existed as to whether a man lying on his stomach was
“threatening or suggested escape” such that the use of force, in
the form of repeated kicking of the man in the stomach, was
warranted by officers. 528 F.3d at 977. In that case, however,
the Circuit also stated that an officer’s act of violence
violates the Fourth Amendment if it furthers no governmental
interest such as apprehending a suspect or protecting an officer
or the public, and noted that the officers’ safety did not
appear to be in issue in that case. Id. at 976. In DeGraff,
the Court found that there was an issue of fact as to whether
the act of carrying a DUI suspect and handcuffing her to a
mailbox constituted excessive force because, unlike in other
cases, there was no evidence that the suspect was evasive,
attempting to escape, or jeopardizing the safety of the
officers. 120 F.3d at 302.
Here, the undisputed facts show that Officer Kadiev was
dealing with a traffic stop that was spiraling rather quickly
19
out of control. 6 Plaintiff admits that she got out of her car
and approached a late-night traffic stop in progress.
Plaintiff’s daughter, at the direction of the plaintiff, ran to
the passenger in the car, Mr. Herrion, who put his arm in the
child’s coat. Plaintiff then attempted to usher the child away
from the stop and the child was driven away from the scene by
other family members who had also arrived at the scene of the
6
Plaintiff also attempts to create an issue of fact in response
to defendant’s arguments. Citing her trial testimony, plaintiff
argues that the testimony “refutes any contention” that Officer
Kadiev was justified in handcuffing plaintiff. The Court
disagrees. As an initial matter, plaintiff’s trial testimony
was not properly cited in her statement of facts and is not
properly considered on summary judgment. See Fed. R. Evid.
56(c)(1)(A); Local Civ. R. 7(h)(1) (requiring that a motion for
summary judgment be “accompanied by a separate concise statement
of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be
litigated”). Plaintiff also does not specifically explain how
her proffered trial testimony refutes any relevant facts. Upon
the Court’s review of the testimony, it appears that plaintiff
testified at her trial that she heard that her brother had been
pulled over and that she traveled to the location where they
were stopped and involved herself in the traffic stop. Pl.’s
Opp. at 12. Plaintiff testified that she tried to go back to
her car and told Officer Kadiev that she would wait at the
corner but was told to come back by Officer Kadiev, who then
handcuffed her and arrested her. Even if the testimony that
plaintiff tried to return to her car were properly considered by
the Court, it does not raise an issue of fact as to the
reasonableness of Officer Kadiev’s conduct. Assuming plaintiff
did attempt to return to her car, there was no guarantee that
she would stay there, in view of her prior conduct. In light of
all of the surrounding circumstances, including the conduct of
plaintiff, the actions of plaintiff’s daughter, and the growing
crowd of family members at the traffic stop, Officer Kadiev
could have believed it was reasonable to handcuff plaintiff at
that time for her safety and the safety of others.
20
accident. At that point, it seems that a small crowd of
plaintiff’s friends and family were at the scene of the
accident, with only one officer. Officer Kadiev stated in her
report that she detected a strong odor of marijuana in Mr.
Cleveland’s car and found a small amount of marijuana in the
car. She also stated that during the stop, Mr. Cleveland sent
text messages, one of which read “Southern Ave. I’m dirty.”
The Court finds that the facts in this case establish that
a reasonable officer could have believed that her actions were
lawful and reasonable under the circumstances. The facts are
distinguishable from Johnson and DeGraff, in which an officer’s
safety and the safety of the public was not at issue. In the
circumstances described above, a reasonable officer could have
believed that her safety or the safety of others was at risk. 7
The Court finds that Officer Kadiev’s conduct therefore did not
violate a clearly established constitutional right in
restraining and handcuffing plaintiff, and that she is entitled
to qualified immunity.
7
Plaintiff notes in her statement of facts that “Defendant
Kadiev was alone in a vehicle because she chose to stop the
vehicle which contained two men while she was alone.” Pl.’s SOF
¶ 6. Plaintiff’s point in making this statement is unclear but
to the extent that plaintiff suggests that Officer Kadiev cannot
rely on the defense of qualified immunity or that the stop was
otherwise improper because she “chose” to pull over two men at
night, the Court finds the argument particularly unpersuasive.
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b. Officer Kadiev Is Entitled to Qualified Immunity With
Respect to Plaintiff’s Arrest
Plaintiff also argues that her arrest violated her Fourth
Amendment to be free of unlawful seizure and unlawful arrest.
The key question is whether, at the time of the detention, a
reasonable officer would have known that under clearly
established law there was no probable cause to arrest plaintiff.
“An officer retains qualified immunity from suit if he had an
objectively reasonable basis for believing that the facts and
circumstances surrounding the arrest were sufficient to
establish probable cause.” Wardlaw v. Pickett, 1 F.3d 1297,
1304 (D.C. Cir. 1993), citing Malley v. Briggs, 475 U.S. 335,
341 (1986). Thus, even if there was not sufficient probable
cause, a defendant will still be immune from suit if reasonable
officers in their positions “could have believed that probable
cause existed to arrest [plaintiff].” Hunter v. Bryant, 502
U.S. 224, 228–29 (1991). As the Supreme Court has made clear,
the officer’s actual state of mind is irrelevant to the
existence of probable cause. Devenpeck v. Alford, 543 U.S. 146,
153 (2004). Rather, the officer’s subjective reason for making
the arrest need not be the criminal offense as to which the
known facts provide probable cause. Id. “The fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the
22
officer’s action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.”
Whren v. United States, 517 U.S. 806, 813 (1996) (citations
omitted).
Defendants argue that a reasonable officer could have
believed that there existed probable cause to arrest plaintiff
for her possible involvement in a number of criminal offenses
under the D.C. Code. Defs.’ Reply (citing D.C. Code ¶¶ 48-
904.01 (possession with intent to distribute a controlled
substance); 48-904.07 (enlistment of minors to distribute a
controlled substance); 22-405(b)(resisting, impeding or
interfering with a law enforcement officer engaged in the
performance of official duties); 21 U.S.C. § 841(a) (possession
with intent to distribute a controlled substance)).
Plaintiff again relies on her trial testimony and argues
that the testimony “refutes any contention” that Officer Kadiev
had probable cause to arrest her. As stated above, the Court is
under no obligation to consider the trial testimony proffered by
plaintiff, as it was not properly cited in her statement of
facts. Again, however, the Court finds that the issue of
whether plaintiff attempted to return to her car on her own
accord does not create a genuine issue of material fact that
precludes summary judgment. Rather, the undisputed facts
demonstrate that Officer Kadiev was in the midst of a quickly
23
unraveling situation involving suspected drug use and possession
and the possible involvement of a minor in those crimes.
Plaintiff’s actions in approaching the stop and involving her
daughter in the stop were sufficient to lead a reasonable
officer to believe that plaintiff had committed a crime,
possibly one involving a minor, and a reasonable officer could
have believed she had probable cause to arrest plaintiff.
Accordingly, the Court finds that Officer Kadiev is entitled to
qualified immunity as to Count V of the complaint. 8
IV. CONCLUSION
For all of the foregoing reasons, defendants’ motion to
dismiss or, in the alternative, for summary judgment is DENIED
as to Counts I through IV of the complaint. Defendants’ motion
for summary judgment is GRANTED as to Count V of the complaint.
An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2013
8
Because the Court grants summary judgment as to Count V, the
Court does not reach defendants’ argument that Officer Kadiev
was not properly served.
24