United States District Court, District of Columbia
ALAN KAY, Magistrate Judge.
Plaintiff Pamela Taylor ("Ms. Taylor" or "Plaintiff") and Defendant United States of America ("Defendant") have consented to proceeded before the undersigned for all purposes including trial. ( See Order of Reference ). Currently before the Court is Defendant's Motion for Partial Summary Judgment  ("Motion"). Plaintiff submitted an Opposition to Defendant's Motion  ("Opposition"), and Defendant submitted a Reply to Plaintiff's Opposition  ("Reply"). For the following reasons, Defendant's Motion will be GRANTED in part and DENIED in part.
For the purpose of evaluating a motion for summary judgment, the court is required to draw all justifiable inferences in the non-moving party's favor and to accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This case arises out of an incident on March 17, 2010, at the Superior Court of the District of Columbia ("Superior Court"). Plaintiff appeared before the Superior Court for a proceeding during which she was ordered by the court to be detained at the District of Columbia Detention Facility ("D.C. Jail"). (Compl. at ¶ 9). Pending her transport to the D.C. Jail, Plaintiff was detained in a holding cell at the Superior Court in the custody of the United States Marshals Service. (Compl. at ¶ 10). Plaintiff was speaking with other inmates. (Motion Exh. 3 (Taylor Tr.) at 40:4-41:8). Eric Clark ("Officer Clark"), a Supervisory Detention Enforcement Officer with the United States Marshals service in the Superior Court, told Plaintiff to stop talking, to which Plaintiff responded "All right, you got that." (Compl. at ¶ 11, Taylor Tr. at 41:9-41:15). Subsequently, Officer Clark grabbed Plaintiff and "slammed" her to the ground. (Compl. at ¶ 12, Taylor Tr. at 41:16-41:24). Plaintiff testified that Officer Clark performed this action without warning. (Taylor Tr. at 42:5-42:6).
Plaintiff was taken to George Washington University Hospital and diagnosed with a fractured nose, a lip laceration, a fractured tooth, and a facial contusion. (Opposition Exh. 1 (Medical Records) at 1, 6). Plaintiff has not received medical treatment for any emotional issues associated with the incident, though she has "thought about" seeking treatment. (Taylor Tr. at 74:16-74:20).
In her Complaint, Plaintiff made 5 claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., including: (1) Assault and Battery; (2) Intentional Infliction of Emotional Distress ("IIED"); (3) Negligence; (4) Gross Negligence; and (5) Excessive Force Prohibited Under the Fourth Amendment. (Compl. at ¶ 21). United States District Judge Ellen S. Huvelle held a status hearing in which she indicated that Plaintiff's negligence claim was unlikely to survive. ( See Motion Exh. 2 (Status Hearing Tr.) at 6:12-6:16). Judge Huvelle ordered that Plaintiff's negligence claim was withdrawn and Plaintiff's Fourth Amendment claim was dismissed. (Order ). Thereafter, the parties consented to proceed before the undersigned for all purposes including trial. ( See Order of Reference ). During a telephonic hearing with the undersigned, Plaintiff declined to withdraw her claim for gross negligence. (Motion at 2). Defendant is moving for partial summary judgment on the claims of gross negligence and intentional infliction of emotional distress. ( Id. ) Defendant admits there is a genuine dispute of material fact regarding Plaintiff's claim for assault and battery and therefore is not moving for summary judgment on that issue, leaving it for trial. ( Id. at 2-3).
II. Standard of Review
Under Federal Rule of Civil Procedure 56(a), summary judgment shall be granted if the movant shows that there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment should be granted against a party "who fails 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).
The plaintiff bears the burden of supporting her allegations with competent evidence. Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C. 2009). Where a plaintiff will bear the burden of proof at trial, she bears the burden of production to designate specific facts showing there is a genuine dispute requiring trial. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citing Celotex, 477 U.S. at 324).
The non-moving party must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. The purpose of summary judgment is to separate the wheat from the chaff, and to hold a trial only on those claims sufficiently in dispute. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). As a result, the Court may not accept conclusory allegations for the purpose of surviving a summary judgment motion. Id. Bare factual allegations, without meaningful factual support in the record, may allow a plaintiff to survive a motion to dismiss for failure to state a case, but will not allow that same plaintiff to survive a motion for summary judgment. Mason v. Geithner, 811 F.Supp.2d 128, 211 (D.D.C. 2011) aff'd, 492 F.Appx. 122 (D.C. Cir. 2012).
A. Gross Negligence
In tort claims brought under the FTCA, the law of the place of the act or omission giving rise to the tort governs. 28 U.S.C.A. § 1346(b)(1). In the instant case, the act occurred in the District of Columbia and therefore D.C. law applies. Looking to D.C. law, Defendant argues that D.C. courts have refused to recognize gross negligence as a separate basis for liability from ordinary negligence. (Motion at 5-6). Thus, according to Defendant, Plaintiff should not be able to state a separate claim for gross negligence after she has already withdrawn her claim for ordinary negligence. (Motion at 6). Plaintiff does not address this argument in its Opposition, but instead responds only to other arguments advanced by Defendant. (Opposition at 4-7).
The District of Columbia does not recognize a tort action for gross negligence that is distinct from the tort of ordinary negligence. See Hernandez v. D.C., 845 F.Supp.2d 112, 115 ("As a general rule, however [t]he law of the District of Columbia does not recognize degrees of negligence.'" (quoting Warner v. Capital Transit Co., 162 F.Supp. 253, 256 (D.D.C.1958) (citing Atchison v. Wills, 21 App. D.C. 548, 561 (D.C.Cir.1903))); Early Settlers Insurance Co. v. ...