United States District Court, District of Columbia
VERE O. PLUMMER, Plaintiff,
DISTRICT OF COLUMBIA et al., Defendants.
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
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.
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.
Factual and Procedural Background
lives on Fairmont Street in the District of
Columbia. 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.
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
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.
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. 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.
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
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.
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,  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.
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.
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.
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.
explained below, Defendants are entitled to judgment in their
favor on all seven ...