The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
This case arises from the arrest of the plaintiff, W. Izal Saddler in Washington, D.C. on September 23, 1985 by a United States Capitol Police Officer, Philip P. D'Ambrosio. Defendants are: the United States; the United States Capitol Police Board; the United States Capitol Police; the Sergeant-at-Arms of the United States House of Representatives, Mr. Jack Russ; the Sergeant-at-Arms of the United States Senate, Mr. Henry Giugni; the Architect of the Capitol, Mr. George White; Frank Kerrigan, Chief of Police, United States Capitol Police; and Capitol Police Officer, Philip P. D'Ambrosio.
Mr. Saddler's opposition to the motions to dismiss makes moot most of the claims pending in both Civil Actions 88-3188 and 88-2699.
Mr. Saddler states that he "agrees with the Defendants that the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"), Pub. L. No. 100-694, compels dismissal of nearly all of this case," although he states the dismissal should be without prejudice. Plaintiff's Opposition at 1. Mr. Saddler also states that "plaintiff's additional claims, other than tort claims should be litigated on the merits. The parties, except officer Philip P. D'Ambrosio, should be released." Plaintiff's Opposition at 2. Thus, the only remaining claims for the Court to consider in this pending motion are Mr. Saddler's common law claims against Officer D'Ambrosio, his Fourth Amendment and 42 U.S.C. § 1983 claims.
In consideration of the issues raised in the motions, the opposition and reply filed thereto, and for the reasons stated below, the Court shall deny in part defendants' motion to dismiss, or in the alternative, for summary judgment as to plaintiff's Fourth Amendment claims, and shall grant in part defendants' motion, as to plaintiff's 42 U.S.C. § 1983 and common law claims.
For purposes of the motion to dismiss, the Court must take Mr. Saddler's version of the facts as true. The plaintiff, W. Izal Saddler, alleges that the following events took place on September 23, 1985.
Mr. Saddler was standing outside of his automobile removing a glass panel from the T-top section of the roof of his automobile, when he entered into a verbal disagreement with a person standing in the window of a nearby apartment building. As Mr. Saddler was returning to his automobile, he saw the defendant, Capitol Police Officer, Philip D'Ambrosio, running across the street toward Mr. Saddler's vehicle. Mr. Saddler sat in his vehicle, closed the door and waited for the officer. Officer D'Ambrosio approached the driver's side of the vehicle and stated "What the (expletive) do you think you are doing?" Before Mr. Saddler answered, Officer D'Ambrosio swung a nightstick through the opening in the roof and struck the glass roof panel in the rear seat. Officer D'Ambrosio then struck Mr. Saddler behind his neck at the base of his skull. Mr. Saddler, in an attempt to prevent further assault by D'Ambrosio, shifted the transmission into drive and left the curb. Mr. Saddler, having recognized the uniform of Officer D'Ambrosio as that of a member of the United States Capitol Police force, decided to drive to the Capitol Police station located on First Street near D Street, N.E. Mr. Saddler drove to the intersection of First and D Streets, N.E., pulled to the curb and stepped out of his automobile. When Officer D'Ambrosio arrived at the intersection, Mr. Saddler placed his hands in the air stating "I am not doing anything." Mr. Saddler alleges that Officer D'Ambrosio assaulted him and advised him that he was under arrest. Officer D'Ambrosio then allegedly pushed Mr. Saddler against his automobile, twisted Mr. Saddler's arms behind his back and tightened handcuffs around his wrist. Officer D'Ambrosio then lifted Mr. Saddler's arms as high as possible forcing him to bend over and forced Mr. Saddler to walk to the Capitol Police Station in this bent position. Here Officer D'Ambrosio confiscated Mr. Saddler's property and some articles of his clothing. Mr. Saddler alleges that as a result of the assault by Officer D'Ambrosio, he was in a semi-conscious state and thus he cannot clearly remember the events which occurred at the police station. However, Mr. Saddler does not believe he was given a reason for his arrest, read his Miranda rights, or allowed to make a phone call. Mr. Saddler was later transferred to the Metropolitan Police Department. Mr. Saddler alleges that he requested medical attention from the Capitol Police and from others during his imprisonment, but received no medical attention. Mr. Saddler was incarcerated for a period of seven days and was released on a surety posted by a bondsman.
A. Fourth Amendment Claim
Mr. Saddler alleges that Officer D'Ambrosio violated the Fourth Amendment by unreasonably searching and seizing Mr. Saddler and by using excessive force in so doing. Defendants argue that summary judgment should be granted for the defendants on the Fourth Amendment claim against Officer D'Ambrosio. Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment, Civil Action No. 88-2699, at 20. In support of their motion, defendants contend that Mr. Saddler was a violent, and highly dangerous suspect, and that he was arrested with only the requisite force required to subdue and handcuff him.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact." The standard for summary judgment mirrors the standard for a directed verdict. A trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must view the evidence in the light most favorable to the non-moving party. Id.
The defendants contend that the force used by Officer D'Ambrosio was reasonable, and that he did not violate Mr. Saddler's rights under the Fourth Amendment. The defendants argue that the plaintiff has failed to contest the material facts that made it reasonable for Officer D'Ambrosio to use force on Mr. Saddler in ...