United States District Court, D. Columbia
October 6, 2005.
ELISA LYLES, et al., Plaintiffs,
JOHN MICENKO, et al., Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Elisa Lyles and Tom Mark ("the plaintiffs"),
brought this action seeking damages for civil rights violations
under 42 U.S.C. § 1983 and various civil torts against the the
District of Columbia, individual police officers, and their next
door neighbors, John and Ellen Micenko ("the Micenkos"). See
Pls.' Am. Compl. The Micenkos have moved for summary judgment.
Upon consideration of the parties' submissions and the entire
record herein, the Court GRANTS the defendants' motion.*fn1
In 1999, the parties resided in adjoining townhomes that shared
a common facade in the Capitol Hill section of the city. Defs.'
Statement of Facts ¶ 2; Pls.' Opp'n to Defs.' Mot. for Summ. J. ¶ 1. Starting with a house painting dispute in July
1999, disputes constantly arose between Ms. Lyles and Mrs.
Micenko across a wide range of issues. Defs.' Statement of Facts
¶¶ 4-5; Pls.' Opp'n to Defs.' Mot. for Summ. J. ¶ 1. The
acrimonious relationship culminated on or about August 20, 1999,
with a dispute concerning the removal of an oil tank from the
back of the Micenkos' property, which necessitated the
involvement of Metropolitan Police Department Officers ("MPD").
Defs.' Statement of Facts ¶ 7; Pls.' Opp'n to Defs.' Mot. for
Summ. J. ¶¶ 2-6. According to the plaintiffs, the MPD on that
occasion forced Ms. Lyles to stay at home as the police and the
Micenkos determined whether the oil tank could be removed from
the defendants' backyard through the plaintiffs' backyard. Pls.'
Am. Compl. ¶¶ 23-36; Pl. Lyles Dep. ¶¶ 27-32, 99-118. Plaintiffs
allege in their complaint that the MPD and the Micenkos
"intentionally and maliciously conspired" to intimidate the
plaintiffs concerning these various disputes. Pls. Am. Compl. ¶
51. Plaintiffs also allege that Ms. Lyles was arrested the next
day by the MPD and held for two days by MPD on felony assault
charges based on false allegations by the Micenkos that Ms. Lyles
attempted to hit Mrs. Micenko with a copper pipe.*fn2 Id.
at ¶¶ 40-49; Pls.' Opp'n to Defs.' Mot. for Summ. J. ¶ 15. According to the plaintiffs, the
police had no probable cause to arrest Ms. Lyles. As a result of
her arrest and detention and subsequent prosecution for assault,
the plaintiffs allege that Ms. Lyles suffered from post-traumatic
stress disorder which adversely affected their marriage. Pls.'
Am. Compl. ¶¶ 58-60, 72-74. Plaintiffs also contend that
defendants defamed the plaintiffs by telling the surrounding
neighbors that Ms. Lyles was "crazy." Pls.' Am. Compl. ¶¶
The plaintiffs filed a suit in this Court on December 14, 2000
seeking monetary damages from the Micenkos for false arrest,
false imprisonment, intentional infliction of emotional distress,
malicious prosecution, slander and defamation, gross negligence,
negligent infliction of emotional distress and loss of
consortium. The Micenkos have moved for summary judgment as to
Counts IV (i.e., Intentional Infliction of Emotional Distress), V
(i.e., Malicious Prosecution), VI (i.e., Slander and Defamation)
and IX (i.e., Loss of Consortium) of the amended
complaint.*fn4 The Court will address each of these counts separately and for the following reasons, GRANTS summary judgment
to each of those counts, and Count VIII (i.e., Negligent
Infliction of Emotional Distress).
A. Standard of Review
Summary Judgment is appropriate when the pleadings and the
record demonstrate 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); see also Celotex v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood,
43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are
"material," a Court must look to the substantive law on which
each claims rests. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could
establish an element of a claim or defense and, therefore, affect
the outcome of the action. Celotex, 477 U.S. at 322;
Anderson, 477 U.S. at 248. Additionally, to be a genuine issue
of fact, it must be supported by sufficient admissible evidence
such that a reasonable trier of fact could find for the
nonmovant. See Laningham v. United States Navy, 813 F.2d 1236,
1242-43 (D.C. Cir. 1987).
The moving party bears the initial burden of "identifying those
portions of the `pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrates the absence
of a genuine issue of material fact." See Celotex,
477 U.S. at 323-24. In order to prevail on its motion for summary judgment,
the movant must show that the nonmovant "fail[ed] 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." Id. at 322.
In opposing summary judgment, the "nonmoving party [must] go
beyond the pleadings and by [its] own affidavits, or by the
`admissions on file,' designate `specific facts showing that
there is a genuine issue for trial." Id. at 324. The Court must
view the facts in the light most favorable to the nonmovant,
giving the nonmovant the benefit of all justifiable inferences
derived from the evidence in the record. Anderson,
477 U.S. at 255 (1986). The nonmovant, however, must establish more than "the
mere existence of a scintilla of evidence" in support of its
position. Id. at 252. However, it may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). The nonmovant must present specific facts
that would enable a reasonable jury to find in its favor.
Greene, 164 F.3d at 675. If the evidence presented "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50.
However, a court ruling on summary judgment motions must not
determine the credibility of witnesses or weigh material facts
legitimately in dispute. Anderson, 477 U.S. at 255
("[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge"); Exxon v. Fed. Trade Comm'n,
663 F.2d 120, 126 (D.C. Cir. 1990) (holding that the function of
the court is to determine whether relevant factual controversy
exists; it is not to make determinations of contested fact) (emphasis added). The drawing of inferences is
the jury's function so long as the competing inferences are
reasonable under the law. Anderson, 477 U.S. at 255.
B. Count IV: Intentional Infliction of Emotional Distress
Plaintiffs' allege that the defendants' conduct of initiating
the complaint with the MPD that led to Ms. Lyles' arrest,
incarceration and subsequent criminal trial, for a crime that Ms.
Lyles maintains she never committed, caused her severe emotional
distress. Pls.' Am. Compl. ¶¶ 58-60. However, after reviewing
both parties' motions and accompanying documents in support of
their positions, the Court finds that plaintiffs have failed to
establish that the conduct of the defendants rose to the
necessary level of "outrageousness" or that plaintiff suffered
the necessary "severe emotional distress" and, therefore, grants
defendants motion for summary judgment as to this count.
To prove a claim of intentional infliction of emotional
distress, "a plaintiff must show (1) extreme and outrageous
conduct on the part of the defendant which (2) intentionally or
recklessly (3) causes the plaintiff' severe emotional distress.'"
Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002). The
conduct alleged must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." Homan v. Goyal, 711 A.2d 812, 818
(D.C. 1998) (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1316
(D.C. 1994). Liability does not extend to "mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities." RESTATEMENT (SECOND) OF TORTS § 46, Comment (d)
(1965). Recovery is not permitted merely because conduct causes mental distress.
District of Columbia v. Thompson, 570 A.2d 277, 290 (D.C. 1990)
While the events that occurred during August 1999, viewed in
the light most favorable to the plaintiffs, are unfortunate,
initiating a complaint with the police about them, even if false,
is not conduct that rises to the level of "outrageousness" as to
be beyond all possible levels of decency and utterly
incomprehensible in a civilized society. Therefore, this Court
finds that the actions claimed to have inflicted emotional
distress on the plaintiffs are not sufficiently outrageous as a
matter of law.
Moreover, as to plaintiffs' claim that Ms. Lyles suffered
"severe emotional distress," they have submitted nothing more
than mere allegations or conclusory statements by Ms. Lyles that
she suffers from such a condition. The list of the names and
addresses she has provided of a licensed social worker, internist
and gynecologist who treated Ms. Lyles after her arrest and
incarceration, combined with her deposition transcript, even when
viewed in the light most favorable to the plaintiff, do not
establish "by sufficient admissible evidence that a reasonable
trier of fact could find for the nonmovant" on the existence of
this element of the claim. Laningham, 813 F.2d at 1242-43.
Thus, after reviewing the pleadings and the accompanying
documents, the Court grants defendants' motion for summary
judgment as to the claim of intentional infliction of emotional
distress. C. Count VI: Defamation (Slander)
Plaintiffs allege that the defendants defamed Ms. Lyles when
they told their neighbors and the MPD that Ms. Lyles was "crazy"
and that she had assaulted Mrs. Micenko. Pls.' Opp'n to Defs.'
Mot. for Summ. J. at 10-11. After reviewing both parties' motions
and accompanying documents in support of their positions in a
light most favorable to the plaintiffs, the Court grants
defendants' motion for summary judgment as to the claim of
A Plaintiff bringing a defamation action "must show (1) that
the defendant made a false and defamatory statement concerning
the plaintiff; (2) that the defendant `published' the statement
without privilege to a third party; (3) that the defendant's
fault in publishing the statement amounted to at least
negligence; and (4) either that the statement was actionable as a
matter of law irrespective of special harm of that its
publication caused the plaintiff special harm." Prins v.
International Tel. and Tel. Corp., 757 F. Supp. 87, 90 (D.D.C.
1991); Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.
2001). For a statement to be defamatory, the statement must
injure the plaintiff "`in his trade, profession or community
standing, or lower him in the estimation of the community' . . .
But an allegedly defamatory remark must be more than unpleasant
or offensive; the language must make the plaintiff appear
`odious, infamous, or ridiculous.'" Howard Univ. v. Best,
484 A.2d 958, 988-89 (D.C. 1984) (citations omitted) (finding that
there was no defamatory language in defendants publication to
third parties). Plaintiffs have provided neither documentation, nor affidavits,
that would establish that there was the necessary "publication"
with defamatory meaning. As such, their allegations of defamation
would not permit a reasonable juror to find in plaintiffs' favor
absent some admissible proof. Thus, the defendants' motion for
summary judgment as to the claim of defamation is granted.
D. Count VIII: Negligent Infliction of Emotional Distress
Plaintiffs allege that the defendants' conduct of initiating
the complaint with the MPD that led to Ms. Lyles' arrest,
incarceration and subsequent criminal trial, for a crime that Ms.
Lyles maintains she never committed, caused her emotional
distress that warrants a claim of negligent infliction of
emotional distress. Pls.' Opp'n to Defs.' Mot. for Summ. J. at
8-9. This Court finds that plaintiff Lyles was not in an actual
zone of physical danger and, therefore, grants defendants' motion
for summary judgment as to this count.
To establish a prima facie case of negligent infliction of
emotional distress, the plaintiff must show that he was "in the
zone of physical danger" created by the defendant's conduct and
was caused "to fear for his or her own well-being." Williams v.
Baker, 572 A.2d 1062, 1067 (D.C. 1990). The plaintiff must also
show that the emotional distress is "serious and verifiable."
Jones v. Howard Univ., 589 A.2d 419, 424 (D.C. 1991) "The
plaintiff's presence in the zone of danger must be
contemporaneous with his fear for his own safety." Id. at 423.
However, the plaintiff does not have to establish that an actual
physical impact occurred to recover for a claim of negligent infliction of emotional
distress. Sowell v. Hyatt Corp., 623 A.2d 1221, 1224 (D.C.
1993). The plaintiffs here have done neither.
Simply stated, Ms. Lyles has not shown that the actions of the
defendants at any time placed her in actual physical danger. Ms.
Lyles seeks to rely on mere allegations, or conclusory
statements, that the emotional distress suffered as a result of
defendants' actions was "serious or verifiable." At no point in
the complaint, her answers to interrogatories or her deposition
does she provide proof of any act of the defendants that created
an unreasonable risk that she would suffer bodily harm during the
events of August 1999, or that the distress she endured was
serious and verifiable. Therefore, viewing the facts in the light
most favorable to the nonmovant, the Court grants summary
judgment for the defendants on the claim of negligent infliction
of emotional distress.
E. Count IX: Loss of Consortium
In plaintiffs' complaint, plaintiff Tom Mark filed a claim for
loss of consortium alleging that the defendants "have
significantly impaired normal consortium and impaired enjoyment
of life to Mr. Mark." Pls.' Am. Compl. at ¶ 74. The defendants
counter, however, that the plaintiffs have not adequately
established that Mr. Mark and Ms. Lyles are indeed married; an
essential element to recover for loss of consortium. For the
following reasons, the Court agrees and grants summary judgment
on this count as well.
A spouse may recover damages for loss of consortium due to: (1)
an injury negligently inflicted upon the other spouse or; (2) an
injury to the marital relationship where the spouse suffered no physical harm. See Crowley v. North American
Telecomm. Ass'n, 691 A.2d 1169, 1175 (D.C. 1997) (recognizing a
loss of consortium claim where there was no physical harm to a
spouse). A lawful marital relationship must exist, however, at
the time of the tortious conduct toward and the injury to one
spouse. Stager v. Schneider, 494 A.2d 1307, 1315 (D.C. 1985)
(finding that husband had a justiciable claim for relief based on
loss of consortium). The term consortium includes material
services, the affection, companionship, sexual relations between
a man and wife, and other aspects shared between spouses. See
Crowley, 691 A.2d at 1174. The plaintiff must prove "an actual
loss of services or affection" because of the tort against his or
her spouse "even though the latter has suffered no physical
injury." Id. at 1175.
Here, plaintiffs have only provided conclusory statements that
they are in fact married. In plaintiff Lyles' deposition, Lyles
stated that she and plaintiff Mark were married in November 1998
in Mexico and subsequently in Alexandria, Virginia on April 1,
1999. Pls.' Ex.4 at 43-46. Moreover, they claim a marriage
license is on file in Alexandria, Virginia, but they have not
produced a copy of it. Id. at 45-46. Therefore, even viewing
the facts in the light most favorable to the plaintiff, the Court
grants summary judgment for the defendants on the claim of loss
of consortium because there is no concrete evidence in the record
to substantiate this essential element of the claim.
F. Count V: Malicious Prosecution
Finally, plaintiffs allege that the actions of the defendants
in initiating a false complaint against Ms. Lyles which resulted
in her arrest, detention and subsequent prosecution rises to a level substantiating a claim of malicious prosecution. Pls. Am.
Compl. ¶¶ 61-66. This Court disagrees and grants defendants'
motion for summary judgment as to this count as well.
In order to support an action for malicious prosecution, a
plaintiff must plead and "prove: (1) that the underlying suit
terminated in plaintiff's favor; (2) malice on the part of the
defendant; (3) lack of probable cause for the underlying suit;
and (4) special injury occasioned by plaintiff as the result of
the original action." Tyler v. Centr. Charge Serv., Inc.,
444 A.2d 965, 968 (D.C. 1982) (reversing lower Court and finding
plaintiff had a cause of action for malicious prosecution); see
Ammerman v. Newman, 384 A.2d 637, 639 (D.C. 1978) (affirming
trial court's granting of summary judgment where there was
probable cause for the lawsuit, no malice and no injury). The
determination of whether the action was instituted with malice is
exclusively for the factfinder. Tyler, 44 A.2d. at 969. The
plaintiff need not prove "actual malice to satisfy this
requirement . . . the requisite malice can be established from
the existence of a willful, wanton, reckless, or oppressive
disregard for the rights of the plaintiff." Id.
Evidence of probable cause acts as a valid defense to a claim
of malicious prosecution. Ammerman, 384 A.2d at 639. "Probable
cause has been said to be such reason supported by facts and
circumstances as will warrant a cautious man in the belief that
his action and the means taken in prosecuting it are legally just
and proper." Id. at 639-40. However, the party instituting a
suit does not need to be sure that the action will be successful
to have probable cause to institute the action. Id. at 640.
"Probable cause does not mean sufficient cause." Id. Whether a person has probable cause to institute a suit "depends
not on the actual state of the case in point of fact, but upon
the honest belief of the person instituting it and may flow from
a belief that turns out to be unfounded as long as it is not
In this case, there was more than adequate probable cause.
Indeed, there is no genuine issue of material fact as to whether
there was probable cause for the defendants to initiate a
complaint in this case. A federal prosecutor, after reviewing the
facts and evidence, was sufficiently satisfied that there was
probable cause to charge Ms. Lyles. A Superior Court judge was
sufficiently satisfied to conduct a trial of the same. The fact
that Ms. Lyles was ultimately acquitted does not negate the
initial determination of probable cause necessary for the U.S.
Attorney's office to proceed in the first place. Accordingly, the
defendants' motion for summary judgment is granted as to this
count as well.
For the foregoing reasons, the Court GRANTS defendants' motion
for summary judgment on Counts IV, V, VI, VIII and IX. An
appropriate Order will issue with this Memorandum Opinion. ORDER
For the reasons set forth in the Memorandum Opinion entered
this date, it is, this 6th, day of October 2005, hereby
ORDERED that Mr. and Mrs. Micenko's motion for summary
judgment is GRANTED.
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