The opinion of the court was delivered by: John D. Bates United States District Judge
In this civil rights action, plaintiff seeks recovery against the District of Columbia, several individual officers of the Metropolitan Police Department ("MPD"), and certain employees and owners of the Fur Nightclub, alleging that he was the victim of a beating carried out by off-duty police officers in collaboration with the nightclub's employees, and that defendants then participated in a cover-up of the incident. Plaintiff brings claims pursuant to District of Columbia law governing tortious and discriminatory conduct and under 42 U.S.C. § 1983 for alleged violation of his rights under the Fourth and Fourteenth Amendments; he characterizes his constitutional claims as wrongful arrest, use of excessive force, and violation of his rights to due process and equal protection of the laws. The factual background of this action is set forth more fully in Mazloum v. District of Columbia, 442 F. Supp. 2d 1 (D.D.C. 2006), and will not be repeated here. Before the Court at this time are the motion of two police officers, defendants Acosta and Smith, for summary judgment on plaintiff's claim under the D.C. Human Rights Act ("DCHRA") and cross-motions in limine filed by plaintiff and defendant Ramirez regarding findings and evidence from a separate judicial proceeding concerning domestic violence.
I. Defendants' Motion for Summary Judgment
Defendants Acosta and Smith move for summary judgment on plaintiff's claim that they retaliated or interfered with the exercise of plaintiff's rights under the DCHRA (Count V) by refusing to take a formal police report regarding the incident. They contend that the undisputed facts establish that plaintiff did not voice a complaint of discrimination, which is necessary to establish a claim of retaliation under the DCHRA. In response, plaintiff contends that other evidence indicates that Acosta and Smith were aware that plaintiff sought to file a complaint that the beating was motivated by his Arab background, and that this is sufficient to support his claim of retaliation.
In resolving the motion for summary judgment, the Court reviews the evidence to determine whether there is a "genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law," as set forth in Fed. R. Civ. P. 56(c). 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The DCHRA provides that "[i]t shall be an unlawful discriminatory practice to coerce, threaten, retaliate against, or interfere with any person in the exercise or enjoyment of, or on account of having exercised or enjoyed, . . . any right granted or protected under this chapter." D.C. Code § 2-1402.61(a). As the Court explained in its earlier decision, to establish a prima facie case of retaliation or interference, "a plaintiff must allege that: (1) he engaged in activity protected under the DCHRA, or opposed practices made unlawful under the DCHRA; (2) he was subjected to adverse action; and (3) there is a causal nexus between the two." See Mazloum, 442 F. Supp. 2d at 12 (citing Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 790 (D.C. 2001)). To support a causal nexus between the protected activity and adverse action, the plaintiff must show that a defendant had some "awareness" of the protected activity. Id. at 12-13 (a defendant's "awareness that the [plaintiff] engaged in protected activity is . . . essential to making out a prima facie case") (quoting Howard Univ. v. Green, 652 A.2d 41, 46 (D.C. 1994)). "To establish such awareness, a plaintiff must show that she 'voice[d] her complaint about . . . the allegedly unlawful activity.'" Id. at 12 (quoting Howard, 652 A.2d at 46); Carter-Obayuwana , 764 A.2d at 791.
Defendants Acosta and Smith contend that the evidence developed to date establishes that plaintiff did not voice a complaint alleging discrimination on the night of the incident, and thus they are entitled to summary judgment on the retaliation claim. They rely on plaintiff's admissions during discovery that he did not tell them about Ramirez's alleged reference to him as "Al-Qaeda," and that he did not mention any discriminatory statements by any officers allegedly involved in the beating. See Defs.' Mem. at 3 (citing Pl.'s Response to Defendants Acosta and Smith's Requests for Admissions). Defendants Acosta and Smith further note that plaintiff did not tell them about his race, religion, or national origin, and they did not refer to his race, religion, or national origin. Id. Plaintiff responds that a plaintiff may prove by circumstantial evidence that a defendant was placed on notice of a person's opposition to discriminatory conduct, regardless of whether "magic words" were employed, and he offers evidence in support of his position that Acosta and Smith were aware that his attempt to file a complaint was in reference to discrimination. Pl.'s Opp. at 1-2, 5-8 & Exs. 1-8.
As the Court recognized in its prior decision, "[t]o alert the defendant that he is opposing discrimination, the [plaintiff] need not . . . employ any 'magic words,' such as 'discrimination,' for 'the communication of a complaint of unlawful discrimination . . . may be inferred or implied' from the surrounding facts." Mazloum, 442 F. Supp. 2d at 13 (quoting Carter-Obayuwana , 764 A.2d at 791) (emphasis in original). Thus, defendant's submission of evidence indicating that plaintiff did not explicitly allege discrimination based on race, religion, or national origin is not dispositive. The Court has reviewed the evidence, and concludes that there is a genuine issue of material fact as to whether defendants Acosta and Smith were on notice that plaintiff's request to file a complaint was in opposition to discriminatory conduct. That genuine issue precludes the entry of summary judgment sought by defendants through their motion.
Here, plaintiff has submitted evidence indicating that he made at least three requests to file a complaint with the police, and that Acosta and Smith refused to consider the requests and otherwise discouraged his efforts to file a complaint. See Mazloum Affidavit dated Dec. 7, 2006 (Pl.'s Mot., Ex. 1); MPD Citizen Complaint Report signed by Mazloum on March 12, 2005 (Pl.'s Mot., Ex. 2). Thus, a description of what plaintiff's allegations would have been is lacking. But there is evidence from which a reasonable trier of fact could infer that Acosta and Smith were aware that plaintiff's attempts to file a complaint encompassed allegations of discriminatory conduct. Plaintiff alleges that during the course of the alleged beating, he said, "I didn't do nothing. Why are you doing that to me?" See Mazloum's Citizen Complaint Report at 2. Ramirez allegedly responded "Shut up, you *** Al-Qaeda." Id. In response, plaintiff kept repeating "I'm not a terrorist . . . I'm not a terrorist." Id. Defendants Acosta and Smith arrived soon thereafter, and, before talking to plaintiff, they allegedly spoke to defendant Ramirez "for about five minutes." See FBI Form FD-302, at 3 (Pl.'s Ex. 3) (summarizing statement of Imad Alkadi). They then declined the request of a Fur employee to arrest plaintiff, and allegedly explained that arresting plaintiff could result in "a lot of reports and drama." Id. at 4.
From this evidence, one could reasonably infer that, during the course of Acosta's and Smith's conversation with Ramirez, they learned of plaintiff's perceived Muslim background and became aware that discriminatory police conduct might have occurred, and that they further were aware that Mazloum's repeated requests to file a complaint on the heels of the incident encompassed a claim that Ramirez's conduct was discriminatory.*fn1 The Court is aware that Acosta, Smith, and other defendants have a different version of events, describing plaintiff as inebriated, violent, and refusing an opportunity to make a police report.*fn2 However, at this stage, construing the evidence in the light most favorable to the non-movant, the Court finds that there is a genuine issue of material fact as to whether Acosta and Smith were aware that plaintiff's alleged request to file a police complaint encompassed opposition to discriminatory police conduct.
II. Cross-Motions in Limine Pertaining to Evidence of Threats Against Defendant Ramirez's Former Spouse
The parties have filed cross-motions in limine pertaining to evidence that defendant Ramirez left enraged voicemail messages on his former wife's cellphone on March 10, 2005, threatening to kill her and their children. The evidence consists of factual findings made by an Arizona municipal court and the transcript of the threats. See Pl.'s Mot. at 2, Ex. A, B, and C. Plaintiff seeks entry of an order declaring that the evidence is admissible "other crimes" evidence under Fed. R. Evid. 404(b) that is relevant to his assault and battery claims and to his constitutional tort claims under 42 U.S.C. § 1983. Plaintiff further seeks an order to collaterally estop Ramirez from contradicting the findings of the Arizona court as to the date of the messages.*fn3
Defendant Ramirez contends that the evidence should be excluded under Fed. R. Evid. 403 as irrelevant and unfairly prejudicial, and as improper character evidence under Fed. R. Evid. 404(a).
Rule 404(a) provides that "[e] vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion," with certain exceptions pertaining to criminal cases and the credibility of witnesses. Fed. R. Evid. 404(a). Consistent therewith, Rule 404(b) excludes evidence of "other crimes, wrongs, or acts" when such evidence is offered "for the sole purpose of proving that a person's actions conformed to his or her character," but provides that such evidence is admissible if offered to prove one of the legitimate purposes enumerated in the rule, including motive and intent.*fn4 See United States v. Long, 328 F.3d 655, 660-61 (D.C. Cir. 2003). Thus, this Circuit has recognized that "Rule 404(b) is a rule of inclusion, rather than exclusion" explaining that "[a]lthough the first sentence of Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes evidence in but one circumstance -- for the purpose of proving that a person's actions conformed to his character." United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000) (internal quotations omitted). ...