The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Mitchell Fernandors brings this action against the District of Columbia, Metropolitan Police Department ("MPD") Officers William Washington, Jr. ("Officer Washington"), Andres Marcucci, Jr. ("Officer Marcucci"), Henry Allen ("Officer Allen"), Eric Fenton ("Officer Fenton"), and Howard Howland ("Officer Howland"), and a number of unnamed MPD officers (collectively "defendants") for violations of the Fourth and Fifth Amendments to the Constitution and a number of common law torts. Plaintiff's claims arise out of an alleged strip search and arrest of him that was conducted by MPD officers in 2001. Defendants now move for partial summary judgment.*fn1 For the following reasons, the Court will grant in part and deny in part defendants' motion for partial summary judgment.
On October 10, 2001 plaintiff bought a single cigar from a convenience store in the area of Fourth Street and Rhode Island Avenue in Northeast Washington, D.C. See Defendants' Statement of Material Facts As To Which Defendants Contend There Is No Genuine Issue ("Defs.' Statement") ¶ 1. Plaintiff then went to a nearby bus stop and removed the tobacco from inside the outer wrapping of the cigar. Id. ¶ 2. While plaintiff was waiting at the bus stop, and unwrapping the cigar, two masked men emerged from a nearby car and approached plaintiff. See Pl. Opp'n, Ex. A, Deposition of Mitchell Fernandors ("Fernandors Dep.") at 57. These two men grabbed plaintiff, and one of them snatched the cigar out of plaintiff's hand and knocked it to the ground. Id. at 58. These men were District of Columbia police officers who are defendants in this action, Officers Washington and Allen. The police officers determined that the cigar did not contain any marijuana. See Pl. Opp'n, Ex. C, Affidavit of Mitchell Fernandors ("Fernandors Aff.") ¶ 7; Pl. Opp'n, Ex. A, Deposition of William Washington ("Washington Dep.") at 8-9; Pl. Opp'n, Ex. A, Deposition of Harry Allen ("Allen Dep.") at 29. After plaintiff was frisked for contraband, he was pushed against a nearby fence, handcuffed behind his back and placed on the ground. See Fernandors Dep. at 59-64. The officers then searched and emptied plaintiff's pockets. See Allen Dep. at 12.
Officer Allen then retrieved a pair of latex gloves and plaintiff was stood up. See Fernandors Dep. at 69. Other officers at the scene surrounded plaintiff by "standing shoulder to shoulder so the public couldn't see the type of search that they were [doing] on [plaintiff] out in public." Id. at 74, 92. The specifics of the search are in dispute, but according to plaintiff, Officer Allen loosened plaintiff's pants and looked down them with the use of a flashlight. Id. at 70. Officer Allen then put his hands down plaintiff's pants, and touched plaintiff's genitalia. Id. at 70-75. Finally, Officer Allen looked down the "backside" of plaintiff's pants. Id. at 76. According to Officer Allen, he merely pulled plaintiff's pants open and looked down them for weapons. Allen Dep. at 40, 48.
After the search, plaintiff alleges, the police found an open container of alcohol nearby. See Fernandors Dep. at 78. Subsequently, plaintiff was charged with possession of an open container of alcohol ("POCA"), and taken to a police station. Id. at 94-97. According to Officers Allen and Washington, they witnessed plaintiff holding the open can of beer. See Allen Dep. at 29; Washington Dep. at 8. Plaintiff was held at the police station for a few hours and released in the early morning hours of October 11, 2001. See Fernandors Aff. ¶ 10.
Summary judgment is appropriate when the pleadings and the evidence demonstrate 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(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999).
Defendants move for summary judgment on a number of grounds. They argue that plaintiff's common law claims must be dismissed as time barred, that plaintiff has failed to establish an equal protection claim against the individual defendants or the District of Columbia, that the individual officers are entitled to qualified immunity on constitutional claims, and that plaintiff has failed to establish municipal liability against the District of Columbia.
I. Statute of Limitations
Defendants contend that plaintiff's common law claims for assault, false arrest, intentional infliction of emotional distress and privacy are barred by the statute of limitations, noting that the search and arrest that gave rise to these claims occurred on October 10, 2001, but plaintiff did not file his complaint until October 11, 2002, one day beyond a one-year statute of limitations. See Def. Mot. at 18-19. In response, plaintiff argues that he was in police custody until October 11, 2001, and therefore his right of action did not accrue until October 11, 2001, making his October 11, 2002 Complaint timely. Id.
This issue is governed by D.C. Code § 12-302(a)(3), which provides that when a person is "imprisoned" at the time the right of action accrues, then that person "may bring action within the time limit after the disability is removed." In order to toll the limitations period, plaintiff's tort action must have accrued at the time of his imprisonment. For an action that accrues during an arrest, D.C. Code § 12-302 tolls the statute of limitations during the time of any imprisonment resulting from that arrest. See District of Columbia v. Tinker, 691 A.2d 57, 64-65 (D.C. 1997) (on an excessive force claim arising out of an arrest, "there is no dispute that the statute was tolled by section 12-302(a)(3) from the moment of [plaintiff's] arrest"); McClam v. Barry, 697 F.2d 266, 371 (D.C. Cir. 1983), overruled on other grounds in Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984). Only upon a prisoner's release from that arrest does the statute of limitations begin to run again. See Simpson v. D.C. Metropolitan Police Dep't, 789 F. Supp. 5, 8 (D.D.C. 1992) ("release from incarceration removes the toll and commences the running of the statute").
In this case, there is no dispute regarding the facts on this issue. Plaintiff was searched and arrested on October 10, 2001 and hence at the time of the search and arrest his common law tort claims accrued. Plaintiff was also held at the police station until the early morning hours of October 11, 2001. Therefore, under § 12-302(a)(3) and the case law interpreting it, the statute of limitations for plaintiff's tort claims was tolled until October 11, 2001, and plaintiff's complaint filed on October 11, 2002 is timely. Although defendants suggest that plaintiff's few hours in police custody do not constitute "imprisonment" for purposes of § 12-302(a)(3), the statutory text does not contain a de minimis exception, nor is there any case law to support defendants' position that a few hours in jail does not constitute imprisonment. Instead, the term "imprisonment" should be given its ordinary meaning -- "the act of putting or confining a man in prison." See Rose v. Washington Times Co., 23 F.2d 993, 994 (D.C. Cir. 1928) (interpreting a precursor to D.C. Code § 12-302(a)(3)). Plaintiff was "imprisoned" by the MPD until October 11, 2001, and therefore the statute of limitations on his tort claims did not run until October 11, 2002, and this action is timely.
Plaintiff alleges that the District of Columbia and the individual officers involved in his search and arrest violated his Fifth Amendment right to equal protection of the laws. To establish an equal protection claim against these defendants, plaintiff must show that he was singled out by police from among others similarly situated on the basis of his race. See Branch Ministries v. Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000). An allegation of racial discrimination in violation of the Constitution's guarantee of equal protection cannot survive unless the plaintiff establishes that the defendant acted with discriminatory intent. See Washington v. Davis, 426 U.S. 229, 241 (1976) (finding that a showing of discriminatory purpose is necessary to bring a claim of racial discrimination under the equal protection component of the Due Process Clause of the Fifth Amendment or under the Equal ...