Mr. Parker's tenor during this exchange is in dispute. Mr. Ricalde then
called for additional security. See Hyatt's Mot. for Summ. J. at 4-5;
D.C.'s Mot. for Summ. J. at 2; Opp'n to Mot. for Summ. J. at 4-5. The
plaintiffs and the Hyatt defendants disagree about whether Hyatt
security asked the plaintiffs to leave the restaurant and the plaintiffs
refused to comply, or whether Hyatt security never asked the plaintiffs
to leave. Hyatt security then withdrew from the scene, leaving the
plaintiffs at the table, and called for the Metropolitan Police,
Department. See Hyatt's Mot. for Summ. J. at 5-6; D.C.'s Mot. for Summ.
J. at 2; Opp'n to Mot. for Summ. J. at 5.
Shortly thereafter, officers Darnell Houston and Hector Lugo arrived
at the scene. The officers briefly questioned Mr. Ricalde, and then
approached the plaintiffs' table and asked them to leave the restaurant.
The parties differ on what happened next. The plaintiffs state that Mr.
Parker agreed to leave and told the officers that he needed his wife's
assistance in transferring him back to his wheelchair, but that before
she could help him the officers violently grabbed him, put him in a
choke-hold, and struck him. See Opp'n to Mot. for Summ. J. at 5-6. The
plaintiffs assert that the officers then dropped him to the ground and
kicked him. See Opp'n to Mot. for Summ. J. at 6.
In contrast, the Hyatt defendants claim that Mr. Parker refused to
leave the premises voluntarily, so the officers attempted to move Mr.
Parker to his wheelchair. The D.C. defendants claim that Mr. Parker
agreed to leave and asked the officers to help him into his wheelchair.
See Hyatt's Mot. for Summ. J. at 6-7; D.C.'s Mot. for Summ. J. at 3.
According to both defendants, while the police were in the process of
lifting Mr. Parker, he began to violently resist them, which made it
impossible to move him to the wheelchair. The D.C. defendants claim
that, upon being struck by Mr. Parker, officer Lugo stepped back, and
because officer Houston could not hold Mr. Parker by himself, Mr. Parker
was dropped to the ground accidentally. The Hyatt defendants claim that,
upon violent resistance from Mr. Parker, the officers placed him back in
the dining chair, but that Mr. Parker purposely slid to the ground and
complained of injuries. See Hyatt's Mot. for Summ. J. at 7-8; D.C.'s Mot.
for Summ. J. at 3.
At this point someone called for an ambulance, and when it arrived,
Mr. Parker was taken to George Washington Hospital, where he was treated
for alleged pain and abrasions. See Hyatt's Mot. for Summ. J. at 8;
Opp'n to Mot. for Summ. J. at 6. After his discharge from the hospital,
Mr. Parker was taken to the police station and was charged with unlawful
entry and disorderly conduct. Ultimately, Mr. Parker was not convicted
of the charges. According to the plaintiffs, the charges were dismissed,
while the defendants maintain that the proceedings were "no-papered."*fn2
See Hyatt's Mot. for Summ. J. at 8; Opp'n to Mot. for Summ. J. at 8.
On October 15, 1998, the plaintiffs filed their complaint, which they
have twice amended. The second amended complaint contains nine counts,
asserting claims for: 1) negligent supervision, against D.C. and Hyatt;
2) intentional infliction of emotional distress, against D.C., Hyatt and
Mr. Ricalde; 3) conversion, against Hyatt and Mr. Ricalde; 4) excessive
force in violation of 42 U.S.C. § 1983, against Officers Houston and
Lugo; 5) false arrest and imprisonment in violation of 42 U.S.C. § 1983,
against Officers' Houston and Lugo; 6) malicious prosecution in violation
of 42 U.S.C. § 1983, against Officers Houston and Lugo; 7) conspiracy
in violation of 42 U.S.C. § 1983, against Mr. Ricalde and Officers
Houston and Lugo; 8) negligent infliction of emotional distress, against
D.C., Hyatt and Mr. Ricalde; and 9) violation of 42 U.S.C. § 1981,
against Hyatt and
Mr. Ricalde. See Second Am. Compl. ¶¶ 28-67.
A. Legal Standard
Summary judgment is appropriate upon a finding that "there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The
substantive law on which a claim rests determines which facts are
"material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a fact bears upon an
essential element of the legal claim, then it is material; otherwise,
it is not. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only disputes over facts that can
establish an element of the claim, and thus those that might affect its
ultimate resolution, can create a "genuine issue" sufficient to preclude
summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505;
Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
To prevail on a motion for summary judgment, the moving party must
establish that there are no genuine issues of material fact and that
the non-moving party has failed to offer sufficient evidence to support
a valid legal claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505;
Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the
court must accept the evidence of the non-moving party as true and must
draw all justifiable inferences in favor of the non-moving party. See
Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however,
for the non-moving party to establish "the mere existence of a scintilla
of evidence in support of the [non-moving party's] position there must
be evidence on which the jury could reasonably find for the [non-moving
party]." Id. at 252, 106 S.Ct. 2505. If the evidence in favor of the
non-moving party "is merely colorable, or is not significantly probative,
summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal
B. Clarification and Amendment of the Court's
September 18, 2000 Order
In the Memorandum Opinion and Order issued September 18, 2000, this
court granted in part and denied in part defendant D.C.'s and defendant
Hyatt's motions for summary judgment. In that decision, the court, among
other things, dismissed Mrs. Parker's intentional and negligent
infliction of emotional-distress claims (counts II and VIII). The court
held that because Mrs. Parker had failed to notify the District of
Columbia of her claim within six months of the alleged injury, as
required under D.C.Code § 12-309, her emotional-distress claims were
time-barred. See Mem. Op. at 13-14.
The plaintiffs now move to amend the court's Order. They argue that
the portion of the decision disposing of Mrs. Parker's
emotional-distress claims "limits itself to a discussion of District of
Columbia Code Section 12-309 and various case authorities citing that
section." See Pl.'s Mot. at 1-2. Moreover, the plaintiffs point out that
section 12-309 applies to claims against the District of Columbia only
and not to claims against private defendants. See id. at 2. Therefore,
they contend, the court "should limit the dismissal of the female
plaintiffs claims under Counts II and VIII to defendant District of
Columbia only." Id.
The court agrees with the plaintiffs that D.C.Code § 12-309 does
not apply to private-sector defendants. The text of the statute itself
reads, in pertinent part:
[A]n action may not be maintained against the District
of Columbia for unliquidated damages . . . . unless,
within 6 months after the injury or damage was sustained,
the claimant . . . . has given notice in writing to the
Mayor of the District of Columbia of the approximate
time, place, cause and circumstances of the injury or
D.C.Code § 12-309 (1981). Moreover, nothing in the language of
Section 12-309 or in any of the applicable case law suggests that the
section's notice requirement applies to a claim against a private
defendant such as defendant Hyatt. Accordingly, as the plaintiffs
suggest, Mrs. Parker's emotional-distress claims could theoretically
proceed against defendant Hyatt. But before determining which of her
two emotional-distress claims may go forward, the court must first
address defendant Hyatt's request for clarification of the September
18, 2000 Memorandum Opinion. See Def.'s Opp'n. at 1-3. As will be
explained below, the court conclude's that only her claim for negligent
infliction of emotional distress against defendant Hyatt may proceed.