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Plummer v. District of Columbia

United States District Court, District of Columbia

June 20, 2018

VERE O. PLUMMER, Plaintiff,
DISTRICT OF COLUMBIA et al., Defendants.



         On July 4, 2014, Plaintiff Vere O. Plummer celebrated our Nation's independence, as many Americans do, by drinking alcoholic beverages at a friend's party. In the wee hours of July 5, Plummer decided to drive himself home. While trying to maneuver his car in the alley behind his house, Plummer struck a neighbor's garage. Other neighbors called the police, who found Plummer in his own open garage, unconscious at the wheel of his car. After a protracted encounter, the police arrested Plummer.

         Plummer filed this lawsuit against Defendants the District of Columbia (the “District”), the Metropolitan Police Department of the District of Columbia (“MPD”), and the District of Columbia Fire Department (“DCFD”), as well as four first responders who Plummer asserts were involved in his arrest: Officer Sandro Lukanovic, Lieutenant John Kutniewski, Officer John F. Nelson, and Battalion Fire Chief Henry Welsh. Plummer claims, among other things, that his arrest violated the Fourth Amendment to the U.S. Constitution and the common law of the District of Columbia, and that the District of Columbia negligently maintained the alley behind his house. Defendants have moved for summary judgment. ECF No. 14. For the reasons set forth below, Defendants' motion will be granted and judgment will be entered in their favor.

         I. Factual and Procedural Background

         Plummer lives on Fairmont Street in the District of Columbia.[1] Pl.'s Resp. SoMF ¶ 1. Plummer's garage, located on the rear of his lot, is detached from his home and opens onto an alley that runs parallel to Fairmont Street. Id. ¶ 20; see also Defs.' Ex. 9 (Plummer 911 call) at 5:25-45 (explaining that Plummer's garage is detached from his house). His neighbors' garages face the same alley. Pl.'s Resp. SoMF ¶ 21. The garage directly across from Plummer's belongs to a neighbor named Kenneth Taylor. Id. ¶ 7.

         On July 4, 2014, Plummer went to an Independence Day party at a friend's house in Maryland. Id. ¶ 3. While conceding that he consumed alcohol that evening, Plummer claims that he had only “a couple of beers” (and possibly some spiked punch) and finished drinking in the early evening. See Id. ¶ 4. Early in the morning of July 5, Plummer drove himself home and arrived sometime between 2:45 a.m. and 4:00 a.m. See Id. ¶ 5; Pls.' Opp'n at 2. In Plummer's telling, his car became stuck in a pothole, and while trying to “rock” the car out, he struck Taylor's garage. Am. Compl. ¶¶ 14-15; Defs.' Ex. 1 (Plummer Dep.) at 43:5-22, 46:1-22; Pl.'s Resp. SoMF ¶ 8.

         Another neighbor, Scott Landrum, called 911 to report the accident. Defs.' Ex. 5 (Landrum 911 call) at 2:08-25, 4:20-32. Landrum told the 911 operator that the car's engine was still running, that smoke was rising from the tires, and that a man was unconscious behind the wheel of the car. Id. at 0:20-24, 1:28-56, 3:30-40. Landrum then relayed that the man had woken up and managed to park in his own garage. See Id. at 6:25-40; see also Defs.' Ex. 2 (Landrum's declaration) (confirming this account); Defs.' Ex. 3 (declaration of a third neighbor) (similar). The unidentified driver turned out, of course, to be Plummer, whose own deposition testimony explains that it took him some time to back into his own garage, that he fell asleep in the midst of that effort, and that he succeeded only after a neighbor woke him. See Defs.' Ex. 1 (Plummer Dep.) at 60:6-61:22, 63:1-22.

         Police, firemen, and paramedics subsequently arrived in the alley. Defs.' Ex. 5 (Landrum 911 call) at 8:40-50; Defs.' Ex. 2 ¶¶ 17-19; Defs.' Ex. 3 ¶ 13; Defs.' Ex. 7 (Nelson Dep.) at 13:13-14:3. Paramedics and fire officials were the first on the scene. Defs.' Ex. 2 ¶¶ 17-19; see Defs.' Ex. 7 (Nelson Dep.) at 13:13-14:3. Police officers then arrived as well, including two Defendants, Officer Lukanovic, see Defs.' Ex. 6 (Lukanovic Dep.) at 23:3-5, and Officer Nelson, see Defs.' Ex. 7 (Nelson Dep.) at 13:13-17. Officer Nelson spoke with the fire officials, who reported that Plummer appeared to be intoxicated but had refused medical assistance. Id. at 14:4-8. Officer Nelson also, at some point, interviewed Plummer's neighbors, who informed him-consistent with the 911 call-that they had found Plummer unconscious with the engine running after striking Taylor's garage, and that Plummer had been woken up and parked in his garage, where he had lost consciousness once more. See Id. at 23:18-25:10; Defs.' Ex. 2 ¶ 19. The police officers personally observed damage to both Taylor's garage and Plummer's car. See Defs.' Ex. 7 (Nelson Dep.) at 19:18-20:16; Defs.' Ex. 8 (Arrington Dep.) at 31:4-12. They also observed, through the open garage door, Plummer unconscious again behind the wheel of his car. See Defs.' Ex. 7 (Nelson Dep.) at 15:15-16, 17:1-4. Two officers testified that Plummer's engine was running at this time, see id.; Defs.' Ex. 6 (Lukanovic Dep.) at 62:16-17, although the record is not entirely clear on this point.[2] Based on these facts, Officer Nelson concluded that Plummer was intoxicated. Defs.' Ex. 7 (Nelson Dep.) at 15:11-18, 47:1-9. Officers entered the garage and woke Plummer by knocking on his window. Defs.' Ex. 6 (Lukanovic Dep.) at 62:16-19.

         Once awake, Plummer appeared to the officers to be confused and disoriented. See Id. at 63:15-64:4; Defs.' Ex. 7 (Nelson Dep.) at 15:10-16:3. Plummer mumbled unintelligibly and struggled to keep his eyes open. See Defs.' Ex. 8 (Arrington Dep.) at 119:14-20. Plummer also occasionally “revved” or “cranked” up his engine. Id. at 119:21-120:9. At a fire official's request, Plummer shifted the car's transmission into park. Defs.' Ex. 10 (Welsh Dep.) at 16:5-10. At some point, Plummer attempted to close the garage door, prompting officers to prevent it from closing on top of them. See Defs.' Ex. 7 (Nelson Dep.) at 137:1-10.

         As the encounter was unfolding, Plummer called 911 to complain about the officers' presence in his garage. See Defs.' Ex. 9 (Plummer 911 call) at 0:01-1:00. The officers, he said, may have damaged the garage when they prevented the door from closing. See Id. at 2:34-52, 12:25-56. “I'm under siege!” he said. Id. at 13:05-11. The 911 operator-who had also taken Landrum's call-asked Plummer whether he had hit someone's garage. Id. at 1:20-25. “No I did not, ” Plummer answered. Id. at 1:25-27. “I'm in my garage, no vehicle has crashed. There's no crash here.” Id. at 3:07-12. After speaking with the officers, Plummer told the 911 operator, “These people are lying to me, they're telling me I hit a garage.” Id. at 7:27-7:31. The 911 operator, ever helpful, told Plummer, “Just be mindful that you're on a recorded line.” Id. at 7:45-7:52. “Just do what the police ask you to do, ” the operator suggested. Id. at 9:46-49. “Are you crazy?” Plummer responded. Id. at 9:49-52.

         Officials on the scene, including Chief Welsh of the fire department (one of the Defendants), tried to coax Plummer out of his vehicle. According to Chief Welsh, Plummer appeared to be either intoxicated or having a medical emergency. Defs.' Ex. 10 (Welsh Dep.) at 18:5-15. In particular, Chief Welsh was concerned that Plummer might be having a “diabetic emergency” and felt that it was his “duty to act” for the welfare of both Plummer and, in the event Plummer chose to drive away, others as well. Id. at 19:2-9, 20:16-21:4, 27:4-5. Chief Welsh urged Plummer to exit the car so that officers could check his blood-sugar level. Id. at 19:18-20. At some point, [3] officers did in fact test his blood sugar, which was normal. Defs.' Ex. 10 (Welsh Dep.) at 24:5-8; Pl.'s Resp. SoMF ¶ 94.

         After Plummer refused to exit the vehicle despite repeated requests, fire officials broke the window of Plummer's car. Id. at 27:16-28:12. Plummer then either exited or was removed from the vehicle. See Defs.' Ex. 6 (Lukanovic Dep.) at 57:16-58:7; Am. Compl. ¶ 30. Because there was no officer on the scene who was certified to administer a field sobriety test, police did not test Plummer's sobriety there. Defs.' Ex. 7 (Nelson Dep.) at 22:9-11, 42:11-14. Plummer was arrested for having failed to leave identification after colliding with Taylor's garage, in violation of D.C. Code § 50-2201.05c, but not for driving while intoxicated. Id. at 42:15-20; Defs.' Ex. 11 (arrest report) at 2. Plummer subsequently failed a field sobriety test at the police station. See Defs.' Ex. 12 (declaration of officer who administered sobriety test). Officer Nelson testified that he should have also arrested Plummer for driving while intoxicated, and that his failure to do so was a “rookie” mistake. Defs.' Ex. 7 (Nelson Dep.) at 42:15-20, 53:12-54:3. Nonetheless, Plummer was never charged with drunk driving. Id. at 22:12-14. All charges against Plummer arising from the incident were ultimately dismissed just before trial. Am. Compl. ¶ 33.

         Even before he was arrested, Plummer had his heart set on litigation. “I'm gonna sue the damn D.C. government royally, ” he told the 911 operator. Defs.' Ex. 9 (Plummer 911 call) at 6:16-20. “You all gonna pay me. . . . I think they call that false imprisonment.” Id. at 15:41-55. And Plummer did indeed bring false imprisonment claims-as well as several others-against the District when he filed this lawsuit in the Superior Court of the District of Columbia on July 5, 2015. ECF No. 3-1 (Superior Court record) at 99-109. After receiving two extensions of time to serve his original complaint, and briefly having his case dismissed for failure to serve process (an order that was later vacated), Plummer ultimately served his amended complaint (the operative pleading). See Id. at 23-40, 84-97. Defendants, asserting federal question jurisdiction, timely removed the action to this Court in December 2015. ECF No. 1 (notice of removal). After discovery, Defendants filed the instant motion for summary judgment. ECF No. 14.

         II. Legal Standard

         Under Rule 56, a court must grant summary judgment “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). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). Courts “are not to make credibility determinations or weigh the evidence.” Id. (quoting Holcomb v. Powell 433 F.3d 889, 895 (D.C. Cir. 2006)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “The movant bears the initial burden of demonstrating that there is no genuine issue of material fact.” Montgomery v. Risen, 875 F.3d 709, 713 (D.C. Cir. 2017). “In response, the non-movant must identify specific facts in the record to demonstrate the existence of a genuine issue.” Id.

         III. Analysis

         As explained below, Defendants are entitled to judgment in their favor on all seven ...

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