AMY BERMAN JACKSON, District Judge.
Plaintiff Nicole Armbruster has brought this action against Metropolitan Police Officer Eric Frost, in his individual capacity, and the District of Columbia. Compl. [Dkt. #1] ¶¶ 2-3. Her complaint alleges three causes of action arising from injuries that she allegedly suffered during her arrest while participating in a protest. Count I asserts an assault and battery claim against both Officer Frost and the District of Columbia. Id. ¶¶ 34-39. The two remaining counts assert 42 U.S.C. § 1983 claims against Officer Frost on the grounds that he used excessive force against plaintiff during the arrest in violation of the Fourth Amendment (Count II) or, alternatively, the Fifth Amendment (Count III). Id. ¶¶ 40-48. Defendants have moved for summary judgment under Federal Rule of Civil Procedure 56 on the grounds that the force that Officer Frost used against plaintiff was "not clearly unreasonable." Defs.' Mem. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") [Dkt. #8] at 7; Defs.' Mot. for Summ. J. [Dkt. #8]. The encounter was captured on videotape, and based upon its review of the tape, the Court will grant defendants' motion for summary judgment on all three counts.
The complaint sets out plaintiff's account of the events of April 21, 2012, when she participated in a protest against the World Bank and the International Monetary Fund. Compl. ¶ 7; Armbruster Decl. [Dkt. #11-4] ¶ 3. Plaintiff alleges that after the protest, she saw that a fellow protestor, Nancy Munoz Wolfson, had stopped walking and was standing in the street. Id. ¶¶ 7-8. Plaintiff states that she approached Ms. Munoz Wolfson, reached a hand toward her, and said: "Come on, let's go." Id. ¶ 8. She goes on: "At that point, approximately seven MPD officers surrounded the two women and pulled the two women apart." Id. ¶ 9. According to plaintiff, several of the police officers, including Metropolitan Police Officer Frost, "grabbed" her and pulled her over to the side of a car. Id. ¶ 10.
The complaint alleges that "without warning, " Officer Frost "then slammed Ms. Armbruster's face into the hood of the car." Id. ¶ 11. It claims that after she "had been bent over the hood of the car for approximately ten second[s], not moving, Officer Frost, without warning, assisted by one or more other officers, threw Ms. Armbruster to the ground, causing cuts and bruises to her face and bruises to her knee." Id. ¶ 18; see Armbruster Decl. ¶ 3. Once plaintiff was on the ground, Officer Frost allegedly placed his knee on her torso and leaned into her, causing plaintiff "to be unable to breathe and also causing her severe pain." Compl. ¶ 19.
Plaintiff asserts that when Officer Frost "slammed" her face into the hood of the car, threw her on the ground, and placed his knee on her torso, she: (1) "was already securely within Officer Frost's grasp"; (2) "was not resisting"; (3) "was neither escaping nor attempting to escape"; (4) "posed no threat to property or anyone's safety"; (5) "was neither touching nor attempting to touch any of the officers who were present"; and (6) "made no aggressive gestures or words and was not in a fighting stance." Id. ¶¶ 12-17, 20-25; see Armbruster Decl. ¶ 5. Plaintiff also alleges that at the time of the arrest, she was particularly vulnerable to pain in her pelvis and abdominal area as a result of recent surgeries, and that Ms. Munoz Wolfson repeatedly told Officer Frost and the other officers that plaintiff was sick and that they were treating her too roughly. Compl. ¶¶ 29-30.
At the end of the encounter, Officer Frost arrested plaintiff. Id. ¶ 31. After her arrest, plaintiff was taken to Sibley Memorial Hospital "due to the pain and injuries she suffered as a result of Officer Frost's use of force against her." Id. ¶ 28. Plaintiff was charged with a violation of D.C. Code § 22-405(b),  but the charge was subsequently dismissed pursuant to a deferred prosecution agreement. Id. ¶ 32.
On September 24, 2012, plaintiff filed this three count complaint against Officer Frost and the District of Columbia. Count I is an assault and battery claim against both defendants. Id. ¶¶ 34-39. She also brings a 42 U.S.C. § 1983 claim against Officer Frost, in his individual capacity, on the grounds that he used excessive force in effecting her arrest in violation of the Fourth Amendment (Count II) or the Fifth Amendment (Count III). Id. ¶¶ 3, 40-48.
On November 9, 2012, during the initial scheduling conference for this case, counsel for plaintiff informed defendants and the Court that there were video recordings depicting the events in question. Plaintiff provided the recordings to the defense. See Defs.' Mem. at 3. On February 13, 2013, defendants then moved for summary judgment in reliance upon that evidence, and they supplied the recordings to the Court. See Defs.' Mem. at 4; Ex. I to Defs.' Mot. for Summ. J. [Dkt. #9]. Plaintiff does not allege that the recordings were altered in any way, and she does not contend that what they depict differs from what actually happened. Indeed, her opposition to defendants' motion also relies on the same material. See Pl.'s Mem. in Opp. to Defs.' Mot. for Summ. J ("Pl.'s Opp.") [Dkt. #11] at 2-8.
The video recordings quite clearly contradict plaintiff's version of the story. They demonstrate that Ms. Munoz Wolfson, who plaintiff claims had merely "stopped walking and was standing in the street, " Compl. ¶ 8, was actually being restrained by police and was physically in their custody. Video 2 at 0:21-:22; see also Video 1 at 0:06-:12. Plaintiff walked into the center of the street where Ms. Munoz Wolfson was being detained and began pulling Ms. Munoz Wolfson towards her while two police officers attempted to hold on. Video 3 at 0:06-:08. Additional officers intervened to separate the women. Officer Frost extricated plaintiff from the fray, and both he and plaintiff fell backwards onto the hood of the car. Video 2 at 0:27-:30. Officer Frost stood up and pulled plaintiff off the car, keeping her hands behind her back in what appears to be an attempt to prevent her from interfering again with Ms. Munoz Wolfson's detention. Id. at 0:31-:32. While the complaint characterizes plaintiff as docile and cooperative, the tapes show that she struggled with and tried to escape from Officer Frost throughout the encounter. Once she was fully upright, plaintiff immediately jerked herself away from Officer Frost and moved toward Ms. Munoz Wolfson. Id. at 0:32-:33; Video 1 at:20-:21. At that point, Officer Frost pulled plaintiff completely free of Ms. Munoz Wolfson, and placed her over the hood of the car. Video 2 at 0:33-:34.
Further, contrary to plaintiff's assertions, she was not lying still on the car when Officer Frost moved her to the ground. See Armbruster Decl. ¶ 4. The videos show that after Officer Frost secured plaintiff over the hood of the car, she reared up, raised her head and shoulders off the car, and propped herself up on her elbows. Video 2 at 0:36. After he pressed plaintiff back onto the car to subdue her again, Officer Frost pulled her left arm down to her lower back and reached his other arm around his back to retrieve his handcuffs. Video 2 at 0:38; Video 1 at 0:28-:29. Meanwhile, plaintiff used her free arm to again push herself off of the hood of the car. Video 1 at 0:29-:31. She wrenched her other arm out of Officer Frost's grip, turned around, and pitched herself forward toward Ms. Munoz Wolfson and into the middle of the group of officers. Id. at 0:32-:33. The surrounding officers, including Officer Frost, caught plaintiff's arms while she was propelling herself forward and then brought her to the ground. Id. at 0:35-:46. One officer secured her right arm, and Officer Frost placed his knee over her left arm and onto her back while using his hands to handcuff her. Video 3 at 0:44-:51. Although the videos provide obstructed views of the handcuffing and moments following, one can observe that plaintiff was able to stand up and walk with Officer Frost without any difficulty immediately after she was handcuffed. Video 2 at 1:16-1:18; Video 3 at 1:03-1:10.
STANDARD OF REVIEW
Summary judgment is appropriate "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). The party seeking summary judgment bears the "initial responsibility of 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual disagreement is insufficient to preclude summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); a dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
But in a case where the court has the benefit of video evidence, the Supreme Court has stated that courts deciding summary judgment motions should "view the facts in the light depicted by the videotape, " and that they need not rely on "visible fiction" when the non-moving party's version of events is "so utterly discredited by the record that no reasonable jury could have believed [it]." Scott, 550 U.S. at 380-81. Therefore, ...