The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Jeffery J. Dormu, an African American, brings this action against the District of Columbia ("District") as well as Scott S. Pinto, Maurice C. Clifford, Jeffery P. Janczyk, and Ramey Kyle-all officers of the Metropolitan Police Department ("MPD") (collectively, "defendants"). This case arises out of an encounter between Dormu and the four police officers while Dormu sat in his car across the street from his mother's house. The encounter ended in Dormu being arrested for, charged with, and eventually acquitted of disorderly conduct and failure to obey a police officer. Dormu's causes of action are based on 42 U.S.C. § 1983 as well as common law claims of assault and battery, false arrest, false imprisonment, malicious prosecution, abuse of process, negligence,and negligent hiring, retention and supervision.*fn1
Before the Court is defendants' motion for summary judgment or, in the alternative, for judgment on the pleadings [#26]. Also before the Court is Dormu's motion seeking leave to file a supplemental expert affidavit [#43], and defendants' motion to strike that supplement [#41].
Upon consideration of the motions, the opposition thereto, and the record of this case, the Court concludes that summary judgment in favor of defendants must be granted in part and denied in part. The Court also concludes that Dormu should be granted leave to file the supplemental expert affidavit, and that defendants' motion to strike the affidavit should be denied.
The events giving rise to this case began on a residential street in the District of Columbia on February 23, 2007 at about 6:00 p.m. Dormu, a vascular surgeon traveling from New Jersey, was visiting his family and was parked outside his family's home on the 1200 block of Crittenden Street, N.W. Pl.'s Opp'n, Ex. 1 at 12--14 (Dep. of Dormu); Compl. ¶ 5. Sitting in a Mercedes-Benz with tinted windows and talking on a cellular telephone, Dormu was approached by Officers Pinto, Clifford, Janczyk, and Kyle. Pl.'s Opp'n, Ex. 1 at 12--14, 16 (Dep. of Dormu); Compl. ¶ 5.
According to the evidence Dormu has adduced, which the Court must accept at this stage in the proceedings, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the four officers approached his car from both sides with their guns drawn. Pl.'s Opp'n, Ex. 1 at 15 (Dep. of Dormu). One officer shined a flashlight on Dormu. Id. An officer then instructed Dormu to "get the fuck off the phone." Id. Dormu ended his phone conversation. Id. at 15--16.
One of the officers remarked that Dormu's car had tinted windows. Id. at 16. Dormu responded that his car was registered in New Jersey, to which one of the officers allegedly said, "[w]ell, that's illegal here and the mayor said that we can search you, search your vehicle and arrest you for having tinted windows." Id. at 16--17. Believing that "the officers were speaking pretty disrespectful[ly] to me," Dormu "pick[ed] up my phone to try to call into my mother's house so someone could come out and witness what was going on." Id. at 17. Janczyk responded by telling Dormu to "hang the fucking phone up," which he did. Id.
After seeing his mother's neighbor on the sidewalk, Dormu "hollered out the window [to ask] could he go to my mother's house and alert them to what's going on here." Id. The neighbor apparently did as requested. Id. Dormu recalls that the officers "kept being disrespectful saying different curse words to me." Id. He remembers telling Janczyk that he was a "tax-paying law-abiding citizen" and a surgeon. Id. at 17--18. According to Dormu, Janczyk "then said to me shut the fuck up, you're nothing but another nigger in a Mercedes-Benz." Id. at18.
Dormu saw his mother, brother, and nephew leave the house. Id. When they approached the sidewalk, he saw Clifford meet them. Id. Dormu recalls telling his mother to go back in the house. Id. at 29. In addition, Dormu remembers asking Janczyk "why am I being harassed, I didn't do anything wrong." Id. at 18. Janczyk replied, "[w]ell, I told you to shut the fuck up, so now you're going to jail." Id.
As Dormu recalls, Janczyk then "reached in the car to grab me. So instead of him trying to pull me through the door or the window, I opened the car door and he grabbed me, grabbed my arm." Id. Dormu remembers Janczyk twisting and extending his arm, then "slamm[ing]" him on the car, putting handcuffs on him, and escorting him to the police vehicle. Id. Dormu perceived the handcuffs to be on him "very tightly," id. at 37, and brought this to Janczyk's attention. Id. Janczyk, according to Dormu, "pretty much ignored me. One time I said it and then another time I said it, he said shut the fuck up." Id. According to Dormu, he did not resist the officers. Id. at 36.*fn2
The officers placed Dormu under arrest for failing to obey a police officer and disorderly conduct. Defs.' Statement of Material Fact ¶ 17. He also received a ticket for a window tint violation. Defs.' Mot. for Summ. J., Ex. 2(Defs.' Interrog. Resps.) at 8.*fn3 The officers took Dormu to the Fourth District station, where he had his fingerprints taken, he was placed in a cell, and his handcuffs were removed. Pl.'s Opp'n, Ex. 1 at 31 (Dep. of Dormu); Defs. Mot. for Summ. J., Ex. 1 at 27 (Dep. of Dormu).
According to Dormu, two officers came to his cell to speak to him-one of whom was Clifford, and the other of whom Dormu does not remember. Pl.'s Opp'n, Ex. 1 at 31 (Dep. of Dormu). As recalled by Dormu, Clifford "stated that what happened didn't really have to happen" and that Janczyk "is a hothead." Id. Clifford also said that if Dormu wanted to "make a complaint, I don't care because I have a stack of complaints already against me." Id. at 32. Dormu was released from the Fourth District approximately four or five hours after his arrival. Id. at 33.
Dormu was tried on the charges of disorderly conduct and failure to obey a police officer. See generally Pl.'s Opp'n, Ex. 10 (Transcript/Findings of the Hon. Marisa Demeo). He was acquitted of both charges. Id. Dormu nonetheless continues to experience the effects of the arrest. According to his deposition testimony, he experiences pain and numbness in his right wrist, a problem for which he has received surgery. Defs.' Mot. for Summ. J., Ex. 1 at 37--44 (Dep. of Dormu). As a consequence, Dormu has stopped performing surgeries that require a certain level of muscle strength. Id. at 44.
Summary judgment may be granted only where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson, 477 U.S. at 248. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant and believe the non-movant's evidence. Id. at 255. The court will not, however, make credibility determinations or weigh the evidence. Id. at 249.
Thus, the Court does not "'determine the truth of the matter,' but instead decide[s] only 'whether there is a genuine issue for trial.'" Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010) (quoting Anderson, 477 U.S. at 249).
To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "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."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A moving party may succeed by pointing to the absence of evidence proffered by the non-moving party. Id. at 322, 325.
To defeat a motion for summary judgment, the non-moving party must offer more than mere unsupported allegations or denials. Id. at 324. Instead, the non-moving party must provide affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Id.*fn4
B. Liability of Individual Officers for Section 1983 Claims
Dormu alleges that the individual officers violated his rights under the Fourth Amendment by subjecting him to false arrest and by using excessive and unreasonable force in effecting that arrest. Compl. ¶¶ 26--27; Pl.'s Opp'n at 8--15.*fn5 Defendants counter that the officers are entitled to summary judgment on these claims because they are shielded from liability by the doctrine of qualified immunity. The Court concludes that the individual officers are not protected by qualified immunity with respect to Dormu's Fourth Amendment false arrest claim. On the issue of excessive force, the Court finds that Kyle, Clifford, and Pinto are entitled to qualified immunity, but that Janczyk is not.*fn6
The Fourth Amendment to the United States Constitution guarantees the right of citizens "to be secure in their persons . . . against unreasonable searches and seizures." U.S. CONST.amend. IV. For a warrantless arrest to comport with the Fourth Amendment's protection against unreasonable seizures, the arrest "must be predicated on particularized probable cause." Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006).The "Fourth Amendment's freedom from unreasonable searches and seizures [also] encompasses the plain right to be free from the use of excessive force in the course of an arrest." Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham, 490 U.S. at 394--95). To enforce these rights, citizens may bring claims under 42 U.S.C. § 1983. See Graham, 490 U.S. at 394.*fn7
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme Court set forth a two-step process for determining whether qualified immunity should apply in a particular case. The first inquiry under Saucier is whether the facts, taken in the light most favorable to the party claiming to have been injured, show that the government official's conduct violated a constitutional right. Id. at 201. If no constitutional right was violated, qualified immunity is appropriate. Id.If the plaintiff's rights were violated, the court must next assess whether, "in light of the specific context of the case," the right in question was "clearly established." Id. A right is "'clearly established'" if "'the contours of that right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The sequence of the two steps is now discretionary, as the Supreme Court has made clear that courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
1. False Arrest under the Fourth Amendment
With respect to Dormu's Fourth Amendment false arrestclaim, the second step of the Saucier analysis-deciding whether a constitutional right was well-established-is not controversial. That is because "[i]t is well settled that an arrest without probable cause violates the [F]ourth [A]mendment." Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987). What the parties dispute is whether, in this case, the officers had probable cause to arrest Dormu.
In determining whether probable cause exists, courts examine "the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The inquiry is based on the "'totality of the circumstances,' which requires that 'the police had enough information to warrant a man of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it.'" Bolger v. District of Columbia, 608 F. Supp. 2d 10, 18 (D.D.C. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983); Barham, 434 F.3d at 572). The arresting officer's subjective state of mind is irrelevant to the inquiry. Devenpeck,543 U.S. at 153. Qualified immunity is appropriate "even if [the officer] reasonably but mistakenly concluded that probable cause existed." Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993) (internal citation and quotation marks omitted).
Dormu contends that defendants lacked probable cause to arrest him. Pl.'s Opp'n at 8--14. Defendants respond that they had probable cause to arrest Dormu both for disobeying a police officer and for disorderly conduct. Defs.' Mem. in Supp. of Summ. J. at 14--19.*fn8
Defendants maintain that they had probable cause to arrest Dormu for failure to obey under 18 DCMR § 2000.2*fn9 because, as Dormu stated in his deposition, he was instructed by the officers to hang up his cell phone and then, at a later point, tried to make a phone call. Id. at 17. Dormu counters that defendants' description "mischaracterizes the events of the traffic stop."
Pl.'s Opp'n at 12. Dormu argues that when the officers first instructed him to hang up his cell phone he "immediately complied and terminated the call." Id. When he later picked up his cell phone to call his mother's house and was ordered to "'hang the fucking phone up,'" Dormu "immediately complied." Id. (quoting Pl.'s Opp'n, Ex. 1 at 17 (Dep. of Dormu)). Dormu contends that rather than failing to obey an officer, he ...