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Fenwick v. United States

United States District Court, District of Columbia

March 1, 2013

Michael FENWICK, Plaintiff,
UNITED STATES of America, et al., Defendants.

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William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.


PAUL L. FRIEDMAN, District Judge.

Before the Court is the defendants' motion to dismiss or, in the alternative, for summary judgment. In an earlier Opinion and Order, the Court granted in part the defendants' motion to dismiss. The Court deferred ruling on the motion for summary judgment, ordering supplemental briefs and exhibits regarding the potentially preclusive effect on this action of the plaintiff's juvenile delinquency adjudication in the Superior Court of the District of Columbia. See Fenwick v. United States, 691 F.Supp.2d 108 (D.D.C.2010). Having carefully considered the parties' original and supplemental briefing, their exhibits, and the applicable law, the Court will grant in part and deny in part the defendants' motion. The bulk of the plaintiff's claims remain intact.[1]


This action arises from an incident in which two Deputy United States Marshals shot and seriously injured the plaintiff, Michael Fenwick— then sixteen years old— as he drove out of a parking lot and failed to heed their orders to stop and speak with them about their suspicions that the vehicle he was driving was stolen.

On January 3, 2007, Mr. Fenwick drove a green Lincoln into the parking lot of an apartment complex in Washington, D.C., parked, and got out of the car. Opp. at 3-4. He walked to the door of his girlfriend's apartment and then, finding that she was not at home, returned to the car. Id. at 4. In the meantime, defendants Deputy Marshals Andrew Pudimott, Jeremy Fischer, and John Mickle (" the deputies" ) were standing nearby in the parking lot, waiting to enforce an eviction order issued for one of the units in the complex. Id. at 4. The parties' accounts of what happened next diverge widely.

According to the defendants, based on Mr. Fenwick's youthful appearance, his behavior, and the appearance of his car, the deputies developed a reasonable suspicion that Mr. Fenwick was driving a stolen automobile and that he was too young to drive. Mem. at 4. As Mr. Fenwick was standing beside the Lincoln after returning from his girlfriend's apartment, they asked him to stop and speak with them. Id. Although Mr. Fenwick heard their request and pointed to his chest while saying, " Who, me?", he did not stop, but instead got into the car and put it in reverse. Id. He then drove the car forward toward " one or more [of the] deputies" who by then had surrounded the vehicle, placing their lives in danger. Id. at 25. Responding to the " apparent threat to the safety of themselves, fellow officers, and/or possibly other bystanders," Deputies Pudimott and Fischer fired several shots at Mr. Fenwick, id. at 26, before he drove off, leaving the parking lot. Compl. ¶ 38.

Mr. Fenwick, in contrast, claims that after he pointed to himself and said " Who,

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me?", he did not observe any response on the deputies' part or hear their request to stop and talk with them. Opp. at 5. Not understanding that they wished him to stay in the parking lot, he climbed into his car and began to back out of his parking space. Id. at 6. After pulling out of the space, Mr. Fenwick stopped while he changed gears. Id., Ex. 3 at 3 (Declaration of Michael Fenwick) (" Fenwick Decl." ). At that point Deputy Pudimott began shooting at Mr. Fenwick. Deputy Fischer also " fired before [Mr. Fenwick] heard any orders to stop," and " while the car was stopped." Opp. at 12. Once Mr. Fenwick began to drive the car forward, Deputy Fischer fired " at least" one other shot at him " as [Mr. Fenwick] was driving away." Id. at 12. Mr. Fenwick maintains that at no time did the deputies " fear[ ] for their lives," id., and that the deputies " kept shooting at [him] as [he] was driving out of the parking lot." Fenwick Decl. at 3.

Unlike the shooting itself, the events that followed are, for the most part, not in dispute. Although he had been struck by several bullets during the shooting, Mr. Fenwick managed to drive out of the parking lot. Fenwick Decl. at 3. He soon passed his stepfather driving on the same road, flagged him down, and was driven to a hospital for treatment of his injuries. Id. Officers from the Metropolitan Police Department found Mr. Fenwick at the hospital, and the deputies identified him as the person they encountered. Pl.'s Sealed Ex. 6 at 2. Mr. Fenwick was transported by helicopter to Washington Hospital Center, where he underwent emergency surgery and for a time was in critical condition. Id.; Fenwick Decl. at 3.

In February 2007, Mr. Fenwick was charged as a juvenile with, among other things, aggravated assault on a police officer and receipt and conversion of stolen property. Defs.' Sealed Ex. 7 at 2-3. His case was tried before Judge Patricia Broderick in the Family Division of the Superior Court of the District of Columbia. Id. During the trial, Mr. Fenwick's counsel moved for the exclusion of tangible evidence— photographs of the allegedly stolen car driven by Mr. Fenwick— on the ground that the evidence had been recovered as a direct result of the illegal seizure of Mr. Fenwick in violation of the Fourth Amendment. Defs.' Sealed Ex. 3 at 6. That seizure, according to counsel, occurred when " the deputies ran over to [the car Mr. Fenwick was driving] with guns drawn and then shot the driver." Id. at 5. Judge Broderick rejected Mr. Fenwick's motion to suppress, Defs.' Sealed Ex. 1 at 3-6, and in a separate ruling, she found Mr. Fenwick " guilty/involved" as to one count each of felony assault on a police officer, receipt of stolen property, and unauthorized use of a vehicle. The assault count was based on Mr. Fenwick's having accelerated forward in the vehicle he was driving with Deputy Pudimott clearly visible near the front of the car, placing the deputy in danger of injury. Pl.'s Sealed Ex. 15 at 3-6; Defs.' Sealed Ex. 6 at 5. The verdict was upheld by the District of Columbia Court of Appeals, against Mr. Fenwick's challenge that government had not proven that he created " a grave risk of causing significant bodily injury" to an officer, as required for a felony conviction under the assault statute. See Memorandum Opinion and Judgment, In re M.T.F., No. 07-FS-1150, 10 A.3d 1158 (D.C. Dec. 2, 2010).

This action was filed by Mr. Fenwick's mother, Cheryl Fenwick, who served as the plaintiff in this case until Mr. Fenwick reached the age of majority. The complaint alleges that Deputies Fischer, Mickle, and Pudimott violated Mr. Fenwick's rights under the Fourth Amendment to the Constitution, and that the United States is liable to Mr. Fenwick under the

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Federal Tort Claims Act (" FTCA" ) for acts of assault, battery, and false imprisonment committed by the deputies in the course of their employment. Mr. Fenwick seeks $10 million in compensatory damages and $100 million in punitive damages.

Surveillance video footage taken by security cameras positioned in the vicinity of the incident captured most of the encounter between Mr. Fenwick and the deputies. This video was relied upon by the Superior Court and the District of Columbia Court of Appeals in Mr. Fenwick's juvenile delinquency adjudication, and the parties have provided the video footage to the Court as evidence in this action.

The Court's earlier Opinion addressed issues arising from the plaintiff's failure to properly serve the individual defendants, and it clarified that Mr. Fenwick could not maintain common law claims against those individual defendants but could only pursue recovery from the United States for their conduct under the FTCA. In addition, the Opinion denied the plaintiff's motion to strike the defendants' exhibits that consisted of records from Mr. Fenwick's Superior Court proceedings. Fenwick v. United States, 691 F.Supp.2d at 112-16. The Court did not rule on the defendants' contention that Mr. Fenwick's claims are barred by res judicata, collateral estoppel, and the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the parties had not adequately briefed the preclusion question or provided the Court with all of the records from Superior Court that it needed to answer that question. Id. at 116-17. The parties have since filed supplemental briefs and exhibits as directed by the Court.


Summary judgment may be granted if " 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). " A fact is ‘ material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘ irrelevant or unnecessary’ do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, " the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C.Cir.2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party is required to provide evidence that would permit a reasonable jury to find in his favor.

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Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the non-movant's evidence is " merely colorable" or " not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505; see Scott v. Harris, 550 U.S. at 380, 127 S.Ct. 1769 (" [W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘ no genuine issue for trial.’ " ) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). To defeat a properly supported motion for summary judgment, then, the non-moving party must have more than " a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001).


A. Collateral Estoppel (Issue Preclusion)

The defendants maintain that during Mr. Fenwick's juvenile delinquency adjudication in Superior Court he unsuccessfully litigated the same issues that he raises here, and that as a result his claims against the defendants are barred by the related doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

Res judicata, or claim preclusion, clearly does not apply. That doctrine bars lawsuits " involving the same claims or cause of action" as an earlier suit. Porter v. Shah, 606 F.3d 809, 813 (D.C.Cir.2010). Mr. Fenwick did not, and could not, bring Bivens or FTCA claims against any defendant during his juvenile delinquency adjudication. Furthermore, res judicata applies only " between the same parties or their privies." Id. Neither the deputies nor the United States were parties to the juvenile proceeding. Mr. Fenwick's claims therefore are not barred by res judicata, so the only question is whether collateral estoppel, i.e., issue preclusion, limits the matters that he may contest in this action.

" Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 696 (D.C.Cir.2009) (quoting Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.Cir.1983)). The purpose of the doctrine is to " conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and ... prevent serial forum-shopping and piecemeal litigation." McGee v. District of Columbia, 646 F.Supp.2d 115, 123 (D.D.C.2009) (citation and internal quotation marks omitted). The Supreme Court has held that " issues actually litigated in a state-court proceeding" — including criminal prosecutions— " are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (citing Allen v. McCurry, 449 U.S. 90, 97-99, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). The only exception is if the party against whom the earlier decision is asserted did not have a " full and fair opportunity" to litigate the issue in the earlier case. Allen v. McCurry, 449 U.S. at 95, 101 S.Ct. 411. " Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." Id. at 96, 101 S.Ct. 411 (citing 28 U.S.C. § 1738). Allen's holding applies to Bivens actions as well as to Section 1983 actions. McClam v. Barry, 697 F.2d 366, 371 n. 3 (D.C.Cir.1983),

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overruled on other grounds by Brown v. United States, 742 F.2d 1498 (D.C.Cir.1984); Weakes v. FBI-MPD Safe Streets Task Force, Civil Action No. 05-0595, 2006 WL 212141, at *4 (D.D.C. Jan. 27, 2006) (citing McClam v. Barry, 697 F.2d at 371 n. 3).

To determine whether a plaintiff's factual or legal contentions are precluded by the results of an earlier state-court proceeding, a federal court must apply the preclusion law of that state. See Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 525, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. at 87, 104 S.Ct. 892. In the District of Columbia, " an issue of fact or law" is rendered conclusive in a subsequent action under collateral estoppel when " (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum." Modiri v. 1342 Rest. Group, Inc., 904 A.2d 391, 394 (D.C.2006) (quoting Davis v. Davis, 663 A.2d 499, 501 (D.C.1995)). In other words, collateral estoppel " precludes the relitigation of issues actually litigated and necessary to the outcome of a prior case involving the party against whom estoppel is asserted[.]" Carr v. Rose, 701 A.2d 1065, 1076 (D.C.1997). " A party raising a claim of collateral estoppel bears the burden of showing that the present issues are identical to those adjudicated in a prior proceeding[.]" Merle v. United States, 683 A.2d 755, 762 (D.C.1996).

Because " [c]ollateral estoppel may be used defensively to prevent a plaintiff from relitigating issues which the plaintiff lost previously against another [party] ... a stranger to the first action may invoke issue preclusion against a party to that action." Patton v. Klein, 746 A.2d 866, 871 (D.C.1999) (quoting Carr v. Rose, 701 A.2d at 1076). Questions of law or fact established in a juvenile delinquency proceeding can have preclusive effect in a subsequent civil action brought against defendants who were not parties to the delinquency proceeding. Lassiter v. Dist. of Columbia, 447 A.2d 456, 458-61 (D.C.1982).

In the defendants' view, all of the issues raised by Mr. Fenwick in this action were adjudicated in his juvenile delinquency proceeding, and the judgment against him in that proceeding acts as a complete bar to his claims here. Mem. at 17-19. While the Court disagrees with that assessment, as explained below, it does conclude that certain factual and legal contentions advanced by Mr. Fenwick in this action were resolved against him in the Superior Court, creating preclusive effect here. Although Mr. Fenwick may not relitigate those particular issues in this Court, that hindrance does not extinguish the viability of his claims against the defendants. The Court will take each of Mr. Fenwick's claims in turn.

1. Bivens Claim for Excessive Force

" To establish a Fourth Amendment violation for excessive use of force by a police officer, a plaintiff must demonstrate that first, he was seized, and second, that the use of force applied in the seizure was unreasonable." Robinson v. Dist. of Columbia, 736 F.Supp.2d 254, 259 (D.D.C.2010) (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Johnson v. Dist. of Columbia, 528 F.3d 969, 973 (D.C.Cir.2008)). A constitutional claim of excessive force is " properly analyzed under the Fourth Amendment's ‘ objective reasonableness' standard, which tracks the constitutional text by asking ‘ whether the force applied

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was reasonable.’ " Johnson v. District of Columbia, 528 F.3d at 973 (quoting Graham v. Connor, 490 U.S. at 388, 109 S.Ct. 1865, and Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C.Cir.1993)). Assessing the reasonableness of a seizure requires giving " careful attention to the facts and circumstances of [the] particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 974 (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865).[2]

The Superior Court made two rulings in Mr. Fenwick's juvenile delinquency proceeding that entailed factual findings and legal conclusions which may have preclusive effect on Mr. Fenwick's excessive force claims. Any determinations made by that court are binding here as long as they were necessary to the judgment and Mr. Fenwick had a full and fair opportunity to litigate them. Allen v. McCurry, 449 U.S. at 95, 101 S.Ct. 411; Modiri v. 1342 Rest. Group, Inc., 904 A.2d at 394.

First, the court denied a motion by Mr. Fenwick to suppress tangible evidence in the form of photographs of the Lincoln Mark that he was driving at the time of his encounter with the deputies. See Defs.' Sealed Ex. 3 (" Mot. to Suppress" ).[3] After fleeing the scene of the shooting and coming across his stepfather driving his own car, Mr. Fenwick left the Lincoln on the street, got into his stepfather's car, and was taken to the hospital. The abandoned Lincoln later was recovered by the police and taken to its crime lab, where it was searched and photographed pursuant to a search warrant. Mr. Fenwick sought to suppress all photographs of the vehicle as the fruits of an illegal seizure. He argued that when the deputies shot Mr. Fenwick they lacked the reasonable suspicion that would justify an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as well as probable cause for an arrest and justification for the use of deadly force under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Mot. to Suppress at 4. In essence, Mr. Fenwick's argument was that but for the allegedly illegal seizure that occurred when the Deputies shot Mr. Fenwick, the police would not have recovered the Lincoln or any evidence derived therefrom. Id. at 6.

In pressing this argument before the Superior Court, Mr. Fenwick contended that the deputies began shooting at him during the moment at which he had stopped the car after backing it out of the parking space but before he began accelerating forward toward the exit to the parking lot— the act that, according to the deputies and an eyewitness named Otis Williams, put Deputy Pudimott in danger of being hit by the vehicle. Based largely on this proffered version of the facts, Mr. Fenwick argued as a legal matter that the deputies used constitutionally excessive

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force in shooting him because they lacked the necessary justification for such force under Tennessee v. Garner, and that the excessiveness of this force rendered the resulting search of the vehicle unlawful. See Pl.'s Sealed Ex. 12 at 204-205; Defs.' Sealed Ex. 14 at 15-17, 20-25.

Responding to the motion to suppress the photographs of the Lincoln Mark, the District of Columbia advanced several arguments about why the search of the Lincoln was lawful. On the facts, the District disputed the claim that the deputies started shooting before Mr. Fenwick began accelerating forward in the car, arguing instead that the shooting occurred only after and in response to the dangerous forward acceleration of the car. Defs.' Sealed Ex. 9 at 2 (" Mot. to Suppress Opp." ). The District also argued that Mr. Fenwick had no standing to challenge the recovery of evidence from the Lincoln because he had abandoned the car, relinquishing any legitimate expectation of privacy that he might have had in its contents. Mot. to Suppress Opp. at 8; Defs.' Sealed Ex. 11 at 1-2; Defs.' Sealed Ex. 14 at 28. The District further argued that, regardless of what happened during Mr. Fenwick's confrontation with the deputies, the subsequent search warrant for the Lincoln was valid. Defs.' Sealed Ex. 14 at 28. None of the District's written or oral submissions addressed whether the deputies used excessive force in shooting Mr. Fenwick, with the exception of steadfastly maintaining that the shooting did not precede Mr. Fenwick's alleged assault.

Judge Broderick heard evidence related to the motion to suppress in tandem with the evidence presented on the merits of the delinquency charges. She ruled orally on the motion to suppress as follows:

[W]ith the evidence presented before me, I find the testimony of the officers to be particularly credible and compelling.
The most compelling witness to me is Otis Williams [the lay witness]— or one of the most compelling— who I think gave a very frank, truthful and, again, compelling statement of what occurred. And he very clearly stated in his testimony that the shots were fired after the car nearly hit at least two of the officers.
[H]e also stated that when the defendant— or the respondent drove up, the officers commented on his youth. What I see from the facts that have been presented before me in evidence is that the defendant— or the respondent drove up. When he got out of the car, his youth was noted. One of the officers noted the recent damage to the car, which made him suspect. And ...

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