The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff, Emile Mazloum, alleges that he was the victim of a nightclub beating orchestrated by several police officers together with certain nightclub employees. Plaintiff visited the FUR Nightclub on the evening of March 11, 2005, and claims that he was assaulted by a bouncer employed by the club and then subsequently beaten by several off-duty police officers who later conspired to cover-up the entire incident. Plaintiff brought suit against several Metropolitan Police Department ("MPD") officers, the District of Columbia, and certain employees of the FUR Nightclub alleging violations of 42 U.S.C. §§ 1981 and 1983 and the District of Columbia's Human Rights Act ("DCHRA"), as well as assault and battery and spoliation of evidence. Discovery has now closed in this case, and currently before the Court are defendants' various motions for summary judgment and partial summary judgment.
The bitterly disputed facts of this case are set out in detail in Mazloum v. District of Columbia, 442 F. Supp. 2d 1 (D.D.C. 2006), and briefly recounted here. On the evening of March 11-12, 2005, plaintiff -- a person of "Lebanese heritage . . . [who] appears visually to be of Middle Eastern ethnicity," Pl.'s Counter-Statement of Facts at 1-- was a patron at the FUR Nightclub in Washington, D.C. Id. at 3. Plaintiff's two friends -- Marwan Abi-Aad and Imad Alkadi -- worked as party promoters for the club and were "manning the stairs that led to the stage above the main dance floor" at the time of the incident. Id. at 5. During the course of the evening, plaintiff was "dancing on the stage just off the main dance floor" and he then "walked to the stairs that exit the stage, intending to descend." Id. at 3. From this point forward, the parties' respective versions of the events depart dramatically. As plaintiff would have it, upon attempting to exit the stage, he was grabbed by defendant Michael Persons, a bouncer employed at the club. Id. For his part, Persons does not deny grabbing plaintiff, but he maintains that he did so because plaintiff appeared "very agitated" in response to Persons asking him to leave the stage and he believed that plaintiff was about to strike him. FUR Mot. for Summ. J. (hereinafter "FUR Mot.") at 23. Thus, Persons claims, he grabbed plaintiff's hands in self-defense. Id.
Alkadi witnessed the grabbing and sought to intervene on plaintiff's behalf, and in the course of that attempt all three men fell to the floor. Pl.'s Counter-Statement of Facts at 5-6. At that point, defendants Modlin, Phillips, Schneider, and Ramirez*fn1 -- off-duty plain clothes MPD officers who were also patrons at the club that night -- became involved in the incident. Id. at 6. In short, their version of the story is that they witnessed an altercation between two individuals, intervened to remove the more aggressive of the two combatants, and then escorted him out of the club to await the arrival of on-duty MPD officers, all the while employing only as much force as reasonably necessary to effectuate their task.
More specifically, Modlin claims that he first became aware of the altercation when another club patron fell against him and he turned to observe plaintiff and Persons "engaged in a struggle." Defs. Phillips, Modlin & Schneider Mot. for Summ. J (hereinafter "Defs. Phillips, Modlin & Schneider Mot.") at 5. He then intervened and "sought out who he believed was the most aggressive individual, who in his view happened to be the plaintiff." Id. Officers Phillips and Schneider joined the fray when they observed Modlin involved in the altercation. Both officers maintain that plaintiff was resisting their efforts to remove him; in particular, Phillips stated that he believed plaintiff was "punching at defendant Modlin," and Schneider similarly "observed plaintiff on his side, punching and kicking, and officers Ramirez and Modlin trying to handcuff him." Id. at 5-6. For his part, Ramirez became involved at some point and produced a set of handcuffs that the officers then placed on plaintiff before leading him out of the club. Id. While waiting with plaintiff outside of the club for the on-duty officers to arrive, the off-duty officers "sat plaintiff down when he tried to stand up." Id. at 5.
Not surprisingly, plaintiff paints a very different picture of the events on that evening. In his view, he was assaulted not only by Persons but then again by the off-duty officers during the course of this brief arrest. According to plaintiff, he was merely exiting the stage when -- without any prior warning or request by Persons to avoid the stage area -- Persons "approached him from behind, wrapped his arms around [plaintiff], and began choking [him]." Pl.'s Counter-Statement of Facts at 3. Furthermore, plaintiff maintains that while Persons had him pinned down, Alkadi attempted to intervene on his behalf, causing all three men to fall to the floor. Id. at 6. At that point, plaintiff argues that the off-duty officers (particularly Modlin and Phillips) got involved in the altercation and separated him from Persons and Alkadi without first identifying themselves as police officers. Id. at 6-7. Now joined by Ramirez and Schneider, the off-duty officers then proceeded to "drag [plaintiff] along the ground across the dance floor . . . while pushing him and hitting him in the back." Id. at 7. Most significantly, while still inside of the club, plaintiff claims that Ramirez "punched [him] in the face and nose, in a single glancing blow" and simultaneously exclaimed to him: "Shut up, you fucking Al-Qaeda!" Id. at 8.
After he was dragged outside by the officers, plaintiff continued to protest his treatment, repeatedly stating: "What did I do? I didn't do anything." Id. at 9. In response, plaintiff states that Ramirez kicked him and again uttered: "Shut up, you fucking Al-Qaeda." Id. When plaintiff attempted to pull himself up from the ground, he maintains that Phillips and Ramirez "caused [him] to fall hard back on the ground." Id. While waiting for the on-duty officers to arrive, plaintiff further insists that Ramirez continued to "taunt" him by referring to him repeatedly as a "fucking terrorist." Id. Plaintiff believes that he was assaulted at least in part due to his ethnicity.
Eventually a squad car arrived, and the on-duty MPD officers -- defendants Acosta and Smith (hereinafter "the on-duty officers") -- began to investigate what had occurred at the club. Id. at 9-10. After conferring in private with Ramirez and Persons, the on-duty officers spoke with plaintiff about the incident. Id. at 10-11. Plaintiff states that once the on-duty officers determined that "there was no evidence that [he] had done anything wrong," they then removed his handcuffs and released him but rebuffed his attempts to file a complaint against the off-duty officers. Id. at 11-12. After leaving the scene, plaintiff proceeded to the Inova Alexandria Hospital, where he was treated for a "broken nose, bloody left eye, scrapes on his face and ears, swelling on the left side of his neck . . . and an assortment of cuts, deep bruises and bumps on his head." Second Am. Compl ¶ 42.
It is undisputed that on the next afternoon, March 12, 2005, plaintiff went to the First District station in D.C. to file a formal police complaint against the officers involved in the incident. Pl.'s Counter-Statement of Facts at 13. While there, he saw and recognized Ramirez, obtained his name and badge number and then recorded them in the complaint. Id. Tipped off to plaintiff's intentions, Ramirez called defendants Rehman and Fioritio, managers of the FUR Nightclub, to inform them of plaintiff's complaint. Id. at 15. Ramirez also called defendants Modlin, Schneider, and Acosta, but none of those individuals "recall the specifics" of their respective conversations. Id. at 14. Later that evening, Alkadi was summoned to a meeting at FUR with defendants Rehman, Fiorito, and Persons. Id. at 15-16. According to plaintiff, at that meeting Fiorito reportedly warned Alkadi that plaintiff would be "burned" if he proceeded with his complaint or filed a lawsuit. Id. at 16. Alkadi, for his part, noted the several security cameras around the club and inquired as to whether any of them may have captured the incident on tape. Id. Fiorito allegedly responded initially by stating that "I don't have it anymore. Everything is gone." Id. Plaintiff also maintains that Fiorito quickly "changed his story and claimed that footage of the incident had never been captured." Id.
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 (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.
A. Motion for Summary Judgment by Officers Phillips, Modlin, and Schneider
Plaintiff brings claims against the off-duty officers in Counts I, II, III, and IV. In response, the off-duty officers have moved for summary judgment on all claims against them. They also have requested that the Court hold that punitive damages are not available against them in this case. For the reasons set forth below, the Court will grant in part and deny in part defendants' motion on Count I, and deny their motions with respect to the remaining Counts.
1. Count I: Qualified Immunity & Excessive Force
In Count I, plaintiff brings a claim under 42 U.S.C. § 1983 alleging that the off-duty officers wrongfully arrested him and employed excessive force in violation of the Fourth Amendment.*fn2 Second Am. Compl. ¶ 58. In response, the off-duty officers maintain that they are entitled to qualified immunity and that, in any event, plaintiff's arrest was based on probable cause. Defs.' Phillips, Modlin & Schneider Mot. at 7. They further contend that they did not use excessive force against the plaintiff. Id. at 10.
Police officers enjoy a qualified immunity from suits alleging violations of constitutional rights. See Saucier v. Katz, 533 U.S. 194, 200 (2001). The Supreme Court has made it clear that there are two inquiries involved in qualified immunity analysis. The first question is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. If the court determines that there is no such violation, the analysis is over and the officer is entitled to qualified immunity. If, however, there is a constitutional violation, the second step in the analysis is to determine "whether the right was clearly established." Id.
Thus, the initial inquiry is whether plaintiff has alleged that the off-duty officers violated his constitutional rights. In Graham v. Connor, the Supreme Court held that the "reasonableness inquiry" in an excessive force claim under the Fourth Amendment is an "objective one": "the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." 490 U.S. 386, 396 (1989). Moreover, at the summary judgment phase where -- as here -- the facts are hotly disputed, "this usually means adopting . . . the plaintiff's version of the facts" for the first step of the qualified immunity inquiry. Scott v. Harris, 127 S.Ct. 1769, 1774-75 (2007). In determining whether there has been an unconstitutional use of excessive force, a court must consider several factors, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Saucier, 533 U.S. at 205.
In this case, the off-duty officers first insist that plaintiff's excessive force claim fails because he has not laid out with sufficient specificity each defendant's personal involvement in violating his constitutional rights. Defs.' Phillips, Modlin & Schneider Mot. at 10. The off-duty officers cite to Simpkins v. District of Columbia, 108 F.3d 366 (D.C. Cir. 1997), to support this contention. The reliance on Simpkins is misplaced, however; the cited passage merely establishes that a "complaint must at least allege that the defendant . . . was personally involved in the illegal conduct." Id. at 369. Here, plaintiff has done just that and has thus met this light burden. Next, the off-duty officers maintain that their actions were objectively reasonable under Saucier because they formed a "reasonable belief that plaintiff was perpetrating an assault upon the bouncer in violation of the laws of the District of Columbia." Defs.' Phillips, Modlin & Schneider Mot. at 11. Moreover, they argue, "the amount of force exacted by these defendants was only that which was necessary to break up the assault, and to arrest plaintiff." Id.
Unsurprisingly, plaintiff tells a different story. Viewed in the light most favorable to him, the facts show that upon descending from the stage in the club, he was accosted by defendant Persons. While Persons had him pinned to the ground, the off-duty officers "entered the fray" and dragged him down the stairs and outside of the club, handcuffing him and "pushing and hitting him in the back" along the way. Pl.'s Off-Duty Opp'n at 11. When he was finally thrown outside of the club, plaintiff was subjected to additional physical abuse by Ramirez, while the off-duty officers "slam[med] [him] back to the ground when he attempted to stand up." Id. at 12.
As the Supreme Court has indicated, resolution of the first stage of the qualified immunity inquiry normally requires "adopting . . . the plaintiff's version of the facts." Scott, 127 S.Ct. at 1774-75. Accepting the facts as set out above, the Court finds that the off-duty officers' actions were not "objectively reasonable" and thus a constitutional violation likely occurred. Many of the relevant factors identified by the Supreme Court in Graham provide useful guidance here. At the outset, Graham indicates that courts should gauge the severity of the crime at issue, an inquiry that cuts sharply in plaintiff's favor. He was merely exiting the stage when he was grabbed and pinned down by defendant Persons; that is hardly a crime on plaintiff's part. Although the off-duty officers contend that they witnessed plaintiff assaulting the bouncer, the Court must view the facts in the light most favorable to plaintiff, which dictates giving credit to plaintiff's account on this point. Plaintiff also posed no threat to the officers or other club patrons before the officers became involved in the incident; indeed, if plaintiff is to be believed, it was Persons that posed such a threat, if anyone did. Plaintiff, moreover, was not evading arrest at the time that the off-duty officers intervened. Finally, although it is true that he was flailing his arms and legs about after the officers became involved, the D.C. Circuit has indicated that attempts to free oneself after the use of force in question has occurred are not relevant to the inquiry concerning the officer's initiation of force. DeGraff v. Dist. of Columbia, 120 F.3d 298, 302 (D.C. Cir. 1997). In short, accepting plaintiff's version of the events, he was a victim twice over: first of an unprovoked assault by defendant Persons and then again by the off-duty officers. The Court cannot say on these facts that the off-duty officers' actions were objectively reasonable for the purposes of an excessive force claim. Indeed, as plaintiff would have it, these facts do not justify the use of any force against him since he had engaged in no culpable conduct. See Scott, 127 S.Ct. at 1778 (holding that it is "appropriate . . . to take into account . . . [the] relative culpability" of a plaintiff in resolving an excessive force claim).
The cases cited by the off-duty officers do not point to a different result. To begin with, the off-duty officers rely on Graham, which held that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers" constitutes excessive force. 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d. Cir. 1973)). Be that as it may, plaintiff's recitation of the facts here amounts to more than an allegation of a mere "push or shove." Indeed, this case also involves significantly more than the "gratuitously violent shove" that was found lacking in Saucier. 533 U.S. at 208. Again, as described above, plaintiff alleges that he was assaulted by the officers, repeatedly pushed and hit in the back, dragged across the nightclub floor, and then thrown to the ground outside (not to mention the more serious assault by Ramirez). Moreover, the context of Saucier makes its holding a particularly poor fit for this case. In Saucier, the Supreme Court's decision was informed in part by the fact that the officer in question was on-duty and was assigned with the task of, among other things, "protect[ing] the safety and security of the Vice President of the United States." Id. at 209. In addition, it was undisputed in Saucier that the officer had the requisite authority to detain the plaintiff in the first instance; the only question was whether he used appropriate force in doing so. Id. at 207. The context of this case, however, is dramatically different. Not only is there no circumstance even approaching the importance of the special duty to protect high-ranking members of the executive branch as in Saucier, but the officers in this case were off-duty and charged with no special obligation to intervene in the altercation between Persons and plaintiff.
Stevens v. Stover, 727 F. Supp. 668 (D.D.C. 1990), cited by defendants, is similarly inapposite. In Stevens, the officers were faced with a fleeing suspect who "resisted arrest . . . refused to show her license and registration, and almost struck an officer with her vehicle in trying to flee." Id. at 671. Indeed, those are some of the relevant factors expressly cited in Graham that point towards resolution in favor of the officer. In any event, it is clear that none of those factors are present in the instant case. Along the same lines, Richardson v. U.S. Department of Interior, 740 F. Supp. 15 (D.D.C. 1990), is no aid to the off-duty officers. There the plaintiff disobeyed a direct order from a uniformed officer, appeared to be trespassing, and also attempted to "wrench away" from the officer after being detained. Id. at 18. In this case, by contrast, plaintiff contests that the off-duty defendants even identified themselves as officers, let alone issued a direct order to him in their official capacity. In sum, the Court is persuaded that, based on plaintiff's version of events, a constitutional violation occurred, and hence will proceed to the second stage of the qualified immunity inquiry.
The second step of the qualified immunity analysis is to determine whether "the [constitutional] right was clearly established." Saucier, 533 U.S. at 201. In Saucier, the Supreme Court indicated that "there is no doubt that Graham v. Connor . . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness." Id. at 201-02. Furthermore, the Supreme Court held, the "dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202.
The relevant question, then, is whether it would be clear to reasonable officers that found themselves in the same situation as the off-duty officers did here that the conduct in question would be unlawful. Thus, the inquiry is as follows: would a reasonable off-duty officer, who had arguably consumed some alcohol,*fn3 believe it would be lawful to drag and handcuff a similarly-situated plaintiff across the nightclub, while pushing and hitting him from behind, and then drop him outside of the club after witnessing an altercation between that plaintiff and a bouncer? The Court does not believe so. According to plaintiff, the off-duty officers all admit that they "did not witness how the altercation between the bouncer and [plaintiff] began." Pl.'s Off-Duty Opp'n at 11. Accepting that, the Court cannot conclude that a reasonable off-duty officer would necessarily believe that it was lawful to intervene in the same fashion as these defendants did here, particularly since, it bears repeating, plaintiff insists that he was already pinned down by Persons. That factual account simply would not permit reasonable off-duty officers to conclude that plaintiff had committed a crime warranting their intervention, particularly with the degree of force that plaintiff alleges defendants employed here. On this record, the Court holds that the off-duty officers are not entitled to qualified immunity. Accordingly, defendants' motion on this aspect of Count I will be denied.
The off-duty officers argue that plaintiff's due process claim against them fails because the District of Columbia is "not a state" and thus the "proscriptions of the Fourteenth Amendment" --in particular, the state action doctrine -- do not apply to it. Defs.' Phillips, Modlin & Schneider Mot. at 13. This is a bit of an odd assertion since plaintiff does not, in fact, necessarily base his due process claim on the Fourteenth Amendment. Plaintiff does allege generically that his right to "due process" has been violated by the off-duty officers' use of excessive force. Second Am. Compl. ¶ 58. But he does not specifically identify the Due Process Clause of the Fourteenth Amendment as the basis for his Section 1983 claim. At the same time, moreover, plaintiff states that the "Due Process aspect of his Section 1983 claim was excised from the Second Amended Complaint." Pl.'s Opp'n to Phillips, Modlin & Schneider's Mot. for Summ. J. (hereinafter "Pl.'s Off-Duty Opp'n") at 18 n. 9. Nonetheless, as noted above, there is still a reference to "due process" in the Second Amended Complaint in Paragraph 58. In any event, Mazloum's due process claim fails because the Supreme Court has indicated that a plaintiff must bring an unconstitutional excessive force claim under the Fourth Amendment rather than the Due Process Clause. Graham v. Connor, 490 U.S. 386, 395 (1989).Accordingly, the Court grants summary judgment to the off-duty officers on this aspect of the Section 1983 claim.
3. Count III: Section 1981 Claim & Count IV: DCHRA Claim
According to the off-duty officers, they are entitled to summary judgment on Count III because plaintiff's claim under 42 U.S.C. § 1981 fails to identify an "impaired contractual relationship under which the plaintiff has rights." Defs.' Phillips, Modlin & Schneider Mot. at 14. Such a relationship, the off-duty officers argue, is a prerequisite to recovery under Section 1981. Id. To support their assertion, the off-duty officers rely on Domino's, Inc. v. McDonald, 540 U.S. 470 (2006). Plaintiff responds that Section 1981 encompasses claims of unlawful discrimination that do not arise solely out of contract, and that Domino's does not teach otherwise. Pl.'s Off-Duty Opp'n at 6-8.
This Court has explained that to state a claim for racial discrimination under Section 1981, a plaintiff "must allege that (1) the plaintiff is a member of a racial minority; (2) the defendant intended to discriminate against the plaintiff on the basis of race; and (3) the discrimination concerned an activity enumerated in § 1981." Williams v. Fed. Nat'l Mortgage Assoc., 2006 WL 1774252 at *4 (D.D.C. June 26, 2006). The crux of defendants' argument on Count III is that plaintiff cannot establish the third prong of this test because only racial discrimination arising out of a contractual relationship is legally cognizable under Section 1981. The off-duty officers maintain that the Supreme Court recently held precisely that in Domino's. There, the plaintiff was the sole shareholder and employee of a corporation that entered into a series of contracts with Domino's. 546 U.S. at 473. Domino's, however, refused to perform under those contracts, allegedly due to its racial animus towards plaintiff, an African-American. Id. Plaintiff then brought suit under Section 1981 alleging that "Domino's had broken its contracts with [the corporation] because of racial animus towards" him, but he did so in his personal capacity rather than on behalf of the corporation. Id. at 474. Rejecting plaintiff's argument that he had a cause of action under Section 1981 "because he 'made and enforced contracts' for [the corporation]," id. at 475, the Supreme Court held that "[a]ny claim brought under § 1981 . . . must initially identify an impaired 'contractual relationship' . . . under which the plaintiff has rights." Id. at 476. The plaintiff failed to meet that threshold showing because although his complaint did identify a contractual relationship -- the one between Domino's and plaintiff's corporation -- under well-established principles of agency and corporations law, "the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation's contracts." Id. at 477. Simply put, because the plaintiff in his personal capacity had no rights or liabilities under the contract, he lacked standing to sue for impairment of that contract under Section 1981. Id. at 479. Hence, Domino's does not require a contractual relationship for a Section 1981 claim, but only requires that where a contract is the basis of a Section 1981 claim, the plaintiff must have rights to assert under the contract.
In this case, the off-duty officers latch on to some of the broad language in Domino's to argue that the case precludes any claim under Section 1981 that does not involve a strict contractual relationship. Although it is true that some of the Supreme Court's statements could arguably be read to imply such a result, a close reading reveals that the Supreme Court's holding was limited to the "make and enforce" contracts clause of Section 1981. Because plaintiff's claim in this case arises out of the "full and ...