The opinion of the court was delivered by: JOHN GARRETT PENN
This matter comes before the court on defendants' Motion to Dismiss, or in the Alternative for Summary Judgment. After careful consideration of the defendants' motion, the plaintiff's opposition, the defendants' reply to the opposition thereto, and the entire record in this case, the Court concludes that the motion for summary judgment should be granted.
On September 13, 1986, plaintiff was in her motor vehicle on Madison Drive, S.W., in the District of Columbia. Defendants Sergeant White ("White") and Officer Moore ("Moore") came upon plaintiff in her automobile, which was double parked. White first blew his horn and motioned plaintiff to move from the area. White then got out of his car, approached plaintiff's car, displayed his badge to plaintiff, and directed her to move on. Plaintiff refused to move her car and defendant White returned to his patrol car. Plaintiff subsequently walked over to defendants' patrol car and asked to see White's badge. White refused, plaintiff then returned to her car and moved it a short distance and stopped again. White again motioned to plaintiff to move on, but plaintiff did not respond. White walked over to plaintiff's car again and said he would call for a tow truck if she continued to refuse to move her car. White then returned to his patrol car and waited five or six minutes. Plaintiff did not move her car. At this time, White proceeded to pull his patrol car in front of plaintiff's car, parked it, walked back to plaintiff's car and instructed her to present her driver's license and vehicle registration. Plaintiff refused, and instead, locked the car doors and closed all the car windows.
Next, White told plaintiff he would place her under arrest if she did not follow his instructions. Plaintiff continued to disregard White's instructions. White then told plaintiff that she was under arrest and that he would have to break the window to effect the arrest if she did not open the car door. Plaintiff picked up a child from the back seat and still did not respond. As White started walking back to his patrol car, plaintiff unlocked her car doors. White returned to plaintiff's car, opened the door, guided her by her arm, and without force, removed plaintiff from her car. See Defendants' Statement of Material Facts.
Throughout the entire episode, plaintiff was allegedly uncooperative and resisted attempts to place handcuffs on her. A female officer, who responded to the radio call, conducted a pat-down search of plaintiff and defendants escorted plaintiff to a transport vehicle. According to White and Moore, at no time did plaintiff complain of any injuries or pain. Later, plaintiff was charged with disorderly conduct, obstructing traffic, and disobeying an officer's order. Id.
Plaintiff alleges false arrest, false imprisonment, assault, battery, malicious prosecution, defamation, intentional and negligent infliction of emotional distress, negligence, negligent training and negligent supervision, gross negligence, and violation of plaintiff's civil rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. Plaintiff further alleges that the defendants' acts violated her statutory rights under 42 U.S.C. § 1983. Plaintiff alleges that the United States is liable under the provisions of the Federal Tort Claims Act ("FTCA") for the above mentioned claims.
II. Motion to Dismiss, or in the Alternative for Summary Judgment
The Court will treat defendant's motion to dismiss or, in the alternative, for summary judgment, as a motion for summary judgment.
Summary judgment is proper where the pleadings, stipulations, affidavits, and admissions in a case show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). Since the party moving for summary judgment has the burden of proving the lack of any genuine issue of fact, the Court must view the available facts in the, light most favorable to the non-moving party. Minihan v. American Pharmaceutical Ass'n, 259 U.S. App. D.C. 10, 812 F.2d 726, 727 (1987).
Although the burden on the party opposing a motion for summary judgment is not great, the party is still "required to show specific facts as opposed to general allegations, that present a genuine issue worthy of trial." 10A Wright & Miller, Federal Practice & Procedure at 2727 (2d ed. 1983). In the present case, plaintiff may respond to the motion by arguing that the evidence offered by the United States raises an issue of fact which must be resolved at trial. Under this standard, facts asserted by the party opposing the motion, in this case the plaintiff, if supported by affidavits or other evidentiary material, are regarded as true. Id.
The Rules of the United States District Court for the District of Columbia, ("Local Rules"), also govern procedure for summary judgment motions. Local Rule 108(h) provides which documents must accompany the motion and the opposition. The rule, in relevant part, states:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall 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, which shall include references to the parts of the record relied on to support the statement. (emphasis added).
Plaintiff, however, has failed to file a timely counterstatement of genuine issues believed to be in dispute, as required under Local Rule 108(h). Plaintiff has not sought to explain her lack of compliance with Local Rule 108(h), nor has she filed a motion to the Court in attempt to have a late submission accepted.
Therefore, the material facts as ...