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Winkey v. Campanale

United States District Court, District Circuit

May 30, 2013

KEVIN WINKEY, Plaintiff,
ANTHONY CAMPANALE, et al., Defendants.


REGGIE B. WALTON, District Judge.

Plaintiff Kevin Winkey brings this action against the District of Columbia (the "District") and two police officers of the District's Metropolitan Police Department, Anthony Campanale and Andre Parker (the "officers"), asserting various constitutional and common law claims arising out of his arrest in March 2008. See Complaint ("Compl.") ¶¶ 10-58. Currently before the Court is the defendants' motion for partial summary judgment. Also before the Court is the plaintiff's motion to accept his late-filed opposition to the defendants' motion for partial summary judgment. Upon careful consideration of the parties' submissions, [1] the Court will deny the plaintiff's motion and grant the defendants' motion.

I. The Plaintiff's Motion to Accept His Untimely Opposition Brief

By way of background, the defendants previously moved for involuntary dismissal of this case pursuant to Federal Rule of Civil Procedure 41(b), based in part on the multiple failures by plaintiff's counsel, Anitha W. Johnson, to comply with this Court's orders. See ECF No. 53 at 1. The Court held a hearing on the defendants' motion on October 2, 2012. While acknowledging Ms. Johnson's noncompliant behavior, the Court ultimately declined to dismiss the case pursuant to Rule 41(b). See October 2, 2012 Minute Order. Recognizing the potential for future noncompliance with orders of this Court, however, the Court denied the defendant's motion without prejudice, and provided the following admonition: "Plaintiff's counsel is advised that any further misconduct in this case will result in the Court reinstating the defendants' motion and dismissing this action." Id . (emphasis added). The Court also entered a summary judgment briefing schedule, directing the plaintiff to file "his memorandum in opposition to the defendants' motion on or before January 11, 2013." Id . Ms. Johnson, however, filed the plaintiff's opposition brief on January 15, 2013, four days past the deadline set by the Court. Ms. Johnson then filed the instant motion a week later, on January 22, 2013, asking the Court to accept the untimely opposition brief.

The plaintiff's motion must be denied for several reasons. First, under the Court's General Order and Guidelines for Civil Cases, motions for extensions of time "must be filed at least four (4) business days prior to the deadline the motion is seeking to extend." ECF No. 8 at 5. The plaintiff's motion, filed more than a week after the deadline he seeks to extend, ignores this directive. Second, the motion disregards the admonition issued in the Court's March 29, 2012 Order that it "will grant no further extensions [of time]... for any reason, absent truly exigent circumstances." ECF No. 44 at 3. In what appears to be a recurring practice in this case by plaintiff's counsel, Ms. Johnson fails even to acknowledge this Order in her motion. Nor does the motion present any "exigent circumstances" justifying an extension. Rather, it represents that Ms. Johnson attempted to timely file the opposition brief by January 11, 2013, but her password for the Court's electronic case filing system "did not work, " and her paralegal "promptly filed" the brief upon obtaining a new password. Pl.'s Mot. at 2-3. This unsubstantiated claim strikes the Court as "nothing but an updated version of the classic my dog ate my homework' line, " which is "plainly unacceptable." Fox v. Am. Airlines, Inc. , 389 F.3d 1291, 1294 (D.C. Cir. 2004). Indeed, "[i]mperfect technology may make a better scapegoat than the family dog in today's world, but not so here." Id . The Court therefore cannot accept the plaintiff's untimely opposition brief, and will strike it from the docket.[2]

But merely denying the plaintiff's motion is not sufficient, for this is not the first time that Ms. Johnson has disregarded this Court's orders. Most relevant here, a month after the Court entered its March 29, 2012 Order prohibiting extensions of time absent exigent circumstances, Ms. Johnson filed what the Court would characterize as a routine motion for an extension of time, making no attempt to show exigent circumstances. See ECF No. 46. The Court accordingly denied the motion and added the following warning: "because plaintiff's counsel appears to have utterly disregarded the... admonition in the Court's March 29, 2012 Order, she is advised that sanctions will be imposed for any future non-compliance with this Court's Orders." April 26, 2012 Minute Order. Furthermore, as noted, the Court's October 2, 2012 Minute Order advised Ms. Johnson that "any further misconduct in this case will result in the Court reinstating the defendants' motion [for involuntary dismissal under Rule 41(b)] and dismissing this action."

The defendants ask the Court to dismiss this case in light of Ms. Johnson's most recent transgressions-her late filing of the opposition brief and improper motion for extension of time. Defs.' Opp'n at 4. Although the Court is tempted to do so, the District of Columbia Circuit has set a high bar for involuntary dismissal based solely on attorney misconduct. See Gardner v. United States , 211 F.3d 1305, 1309 (D.C. Cir. 2000). This is particularly true where, as here, the underlying rationale for dismissal would be deterrence of future misconduct by counsel and there is no indication that the client is at fault. See Shea v. Donohoe Constr. Co. , 795 F.2d 1071, 1077-79 (D.C. Cir. 1986). As the Shea court explained, "[w]hen the client's only fault is his poor choice of counsel, dismissal of the action has been deemed a disproportionate sanction. Rather, we have frequently said, the District Court should first attempt to sanction the attorney at fault." Id. at 1077. In any event, as a prerequisite to dismissal based on attorney misconduct, a court must provide notice of the misconduct directly to the client. See id. at 1078 ("We look disfavorably upon dismissals as sanctions for attorney misconduct or delay unless the client himself has been made aware of the problem, usually through notice from the trial court. We advise strongly the district courts themselves directly notify the client when attorney misconduct has occurred to a degree that the court is contemplating dismissal if a recurrence occurs."). The Court has not yet provided the requisite notice in this case.

Accordingly, heeding the Circuit's guidance in Shea, the Court will direct Ms. Johnson to pay the Clerk of Court $500 as a sanction for her violations of this Court's orders, as described above and at the hearing held by the Court on October 2, 2012. The Court will also require Ms. Johnson to reimburse the defendants for costs they reasonably incurred in preparing their opposition to the plaintiff's motion to accept the untimely opposition brief. Finally, in an abundance of caution, the Court will directly provide the plaintiff with a separate notice consistent with the dictates of Shea. Id . ("Th[e] communication should notify the client, in clear and unequivocal terms, that his case is in danger of dismissal due to his lawyer's dereliction; that the court will no longer tolerate the attorney's current course of conduct; and that the client is advised to be in touch with his lawyer to ensure future compliance with court orders, or to make arrangements for new counsel.").

II. The Defendants' Motion for Partial Summary Judgment

While the conduct of plaintiff's counsel has not yet warranted dismissal of this case under Rule 41(b), her failure to file a timely opposition brief does justify treating the defendants' motion for partial summary judgment as unopposed, pursuant to Local Civil Rule 7(b) (If a memorandum in opposition to a motion "is not filed within the prescribed time, the Court may treat the motion as conceded."). But "even where a summary judgment motion is unopposed, it is only properly granted when the movant has met its burden.'" Cromartie v. Dist. of Columbia, 479 F.Appx. 355, 356 (D.C. Cir. 2012) (quoting Alexander v. FBI , 691 F.Supp.2d 182, 193 (D.D.C. 2010)). Thus, the Court's remaining task "is to determine whether summary judgment [is] appropriate on the facts as stated in the [defendants'] motion, " which the Court accepts "as having been conceded by [the plaintiff] due to his failure to respond." Id . (citing Local Civ. R. 7(h)(1)).

A. Background

The Court deems the following facts conceded by the plaintiff. On the night of March 28, 2008, the officers were dispatched to investigate a complaint of indecent exposure near 4046 E Street, S.E., Washington, D.C. Defs.' Facts ¶ 1. Specifically, the dispatcher reported that a black man and white woman were seen "engaging in sexual activity in a white, four-door sedan at that location." Id . ¶ 2. When the officers arrived at the scene-a parking lot behind an apartment building-they found a car fitting the dispatcher's description with a black male in the driver's seat and a white female in the passenger seat. Id . ¶¶ 3-4. The male was later identified as the plaintiff. Id . ¶ 5. As the officers drew closer to the car, they saw that the female's head was in the man's lap, and "that [the p]laintiff's pants were down around his thighs." Id . ¶¶ 4, 6. Seeing this, the officers "asked the occupants to get out of the vehicle and place their hands on the trunk so the officers could check them for weapons." Id . ¶ 8. The plaintiff, however, "refused to follow the officers' instructions and actively resisted their attempts to do a pat down." Id . ¶ 9. The officers ultimately restrained the plaintiff and forced him to the ground. Id . ¶ 10. During his deposition in this case, the plaintiff testified that "after placing him in handcuffs, the police officers kicked and punched him for approximately five minutes." Id . ¶ 13.

The "[p]laintiff was charged with assault on a police officer and threats to do bodily harm, " but those charges "were dismissed for want of prosecution" on August 5, 2008. Id . ¶¶ 14-15. According to the plaintiff's deposition testimony, the court dismissed the charges against him because the officers did not appear for scheduled court dates. Id . ¶ 16.

The plaintiff then instituted this action on December 12, 2008. His complaint asserts the following seven counts only against the officers: Count I - False Imprisonment, Compl. ¶¶ 17-19; Count II - Defamation Per Se, id. ¶¶ 20-23; Count III - Assault and Battery, id. ¶¶ 24-26; Count IV - Intentional Infliction of Emotional Distress, id. ¶¶ 27-29; Count V - Malicious Prosecution, id. ¶¶ 30-35; Count VI - False Arrest, id. ¶¶ 36-39; and Count VII - False Light Invasion of Privacy, [3] id. ¶¶ 40-45. Additionally, Count VIII of the complaint asserts a claim for various constitutional violations against all of the ...

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