MEMORANDUM OPINION
REGGIE
B. WALTON, UNITED STATES DISTRICT JUDGE
The
plaintiff, Stephen Jiggetts, brings this civil action against
Daniel Cipullo, in his capacity as the Director of the
Criminal Division of the Superior Court of the District of
Columbia (“Superior Court”), and the District of
Columbia (collectively, the “defendants”),
asserting common law causes of action of false arrest (Count
I), false imprisonment (Count II), malicious prosecution
(Count III), intentional infliction of emotional distress
(Count IV), and slander (Count V), see Fourth
Amended Complaint (“4th Am. Compl.”) ¶¶
78-137, as well as federal claims of false arrest and
malicious prosecution against Cipullo, pursuant to 42 U.S.C.
§ 1983 (2018) (Count VII) and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971) (Count VIII).[1] Currently before the Court is the
Defendants' Motion for Summary Judgment
(“Defs.' Mot.”). Upon careful consideration
of the parties' submissions, [2] the Court concludes for the
following reasons that it must grant the defendants'
motion for summary judgment as to the plaintiff's
Bivens cause of action and deny summary judgment as
to the plaintiff's other claims.
I.
BACKGROUND
A.
Factual Background
This
case arises from an encounter between the plaintiff and
Cipullo, which occurred outside of the main Superior Court
building on the evening of November 6, 2014. See
Pl.'s Opp'n at 1. The following facts are relevant to
the plaintiff's claims.
1.
The November 6, 2014 Encounter Between the Plaintiff and
Cipullo
The
plaintiff's wife, Tanisha Jiggetts, works with Cipullo at
the Superior Court in the Criminal Division. See
id., Exhibit (“Ex.”) H (Interview with
Daniel Cipullo, Director of the Criminal Division, Superior
Court (Nov. 13, 2014) (“Cipullo Interview”)) at
¶ 000039. However, according to Cipullo, the two
“don't have the best working relationship.”
Id., Ex. H (Cipullo Interview) at ¶ 000040. On
November 6, 2014, Cipullo served the plaintiff's wife
with a notice of suspension. See id., Ex. H (Cipullo
Interview) at ¶ 000039-40. Thereafter, the
plaintiff's wife called the plaintiff and told him that
Cipullo “just detained [her] in [her] office” and
“would not let [her] out.” Id., Ex. A
(Deposition of Stephen Jiggetts (March 22, 2017)
(“Stephen Jiggetts Dep.”)) 31:14-16.
After
receiving this call from his wife, the plaintiff drove to the
Superior Court. See id., Ex. A (Stephens Jiggetts
Dep.) 31:19-20. As he approached the Superior Court in his
vehicle, the plaintiff saw Cipullo leaving the courthouse.
See Defs.' Facts ¶ 1.[3] Upon seeing
Cipullo, the plaintiff exited his vehicle and approached
Cipullo, see Defs.' Facts ¶ 2; see
also Pl.'s Opp'n, Ex. A (Stephens Jiggetts Dep.)
43:3, along with the plaintiff's daughter, who also
approached “the scene, ” Pl.'s Opp'n, Ex.
A (Stephens Jiggetts Dep.) 45:20-21.
The
plaintiff confronted Cipullo, stating, “Detain me like
you detained my wife. Talk to me like you talked to my wife,
. . . mother****er.” Defs.' Facts ¶ 3; see
also Pl.'s Opp'n, Ex. A (Stephens Jiggetts Dep.)
43:4-8. According to Cipullo, the plaintiff also threatened
to “kick [his] ass, ” Pl.'s Opp'n, Ex. H
(Cipullo Interview) at ¶ 000042; see id., Ex. S
(Affidavit in Support of an Arrest Warrant (“Arrest
Warrant Affidavit”)) at 1 (recording of Cipullo's
statement to Metropolitan Police Department
(“MPD”) officers, in which Cipullo represents
that “[the plaintiff] [ ] stated[, ] ‘you
can't threaten my wife, you can't touch my wife.
I'll kick your ass.'”), which the plaintiff
denies, see Pl.'s Facts ¶ 2, ¶ 1;
see also Pl.'s Opp'n, Ex. A (Stephens
Jiggetts Dep.) 44:16-20, 45:2-5.[4] Cipullo then informed the
plaintiff that he was going to call the police, which the
plaintiff encouraged him to do. See Defs.' Facts
¶¶ 4, 8; see also Pl.'s Opp'n, Ex.
A (Stephens Jiggetts Dep.) 43:12-14. At that point, the
plaintiff removed his police identification and badge from
his back pocket to show Cipullo that he was a retired police
officer. See Defs.' Facts ¶ 5; see
also Pl.'s Opp'n, Ex. A (Stephens Jiggetts Dep.)
43:15-18, 44:2-12.
Cipullo
called the police as he indicated he was going to do, and
because of their close proximity to the MPD headquarters, the
plaintiff and Cipullo walked over to the police station
together. See Pl.'s Opp'n, Ex. A (Stephens
Jiggetts Dep.) 44:13-45:16. After the plaintiff and Cipullo
reached the police station, the police officers who responded
to Cipullo's call separated Cipullo from the plaintiff
and his daughter, interviewed them, and declined to arrest
the plaintiff, despite Cipullo's request that they do so.
See Pl.'s Facts ¶ 3; see also
Pl.'s Opp'n, Ex. A (Stephens Jiggetts Dep.) 54:6-19;
id., Ex. H (Cipullo Interview) at ¶ 000043
(“‘I'd like to get a warrant for his arrest
because he threatened me.' I know I can do this because I
work in the courthouse. The white officer said[, ] ‘No,
we're not going to arrest anyone because you threatened
him too, so we're going to write a report.'”).
The officers characterized their report of the incident as a
miscellaneous report, rather than an offense report,
see Pl.'s Opp'n, Ex. C (Deposition of
Detective David Gargac (Apr. 26, 2017) (“Gargac
Dep.”)) 36:5-16, which, according to the one of the
officers, meant that the officers, who interviewed Cipullo,
the plaintiff, and the plaintiff's daughter, believed
that “no crime” had been committed, id.,
Ex. C (Gargac Dep.) 36:11-12.
2.
Cipullo's Alleged Actions Following the November 6, 2014
Encounter
Immediately
following the encounter between the plaintiff and Cipullo,
while still in MPD headquarters, Cipullo called his
supervisor at the Superior Court, Cheryl Bailey, to tell her
about the encounter and to ask her to join him at the
station. See Pl.'s Facts ¶ 5; Pl.'s
Opp'n, Ex. H (Cipullo Interview) at ¶ 000042-43. He
also called Superior Court Judge Morin to inform him about
the encounter. See Pl.'s Facts ¶ 5;
Pl.'s Opp'n, Ex. E (Deposition of Daniel Cipullo
Deposition (May 2, 2017) (“Cipullo Dep.”))
62:15-22. Bailey then contacted the then-Chief Judge of the
Court, Lee Satterfield, and the Court's Chief Security
Officer, Richard Parris, to report what had occurred. See
id., Ex. F (Deposition of Cheryl Bailey (May 8, 2017)
(“Bailey Dep.”)) 32:6-15. The next day, a meeting
took place between a number of Superior Court officials,
including Cipullo, Bailey, and Parris, to determine what to
“do going forward.” Id., Ex. E (Cipullo
Dep.) 65:1-4, 10-15.
On
November 13, 2014, Parris interviewed Cipullo regarding what
had occurred on November 6, 2014. See Pl.'s
Facts ¶ 8; see generally Pl.'s Opp'n,
Ex. H (Cipullo Interview). During this interview, Cipullo
reported that the plaintiff stated that he was “gonna
kick [Cipullo's] ass.” Pl.'s Opp'n, Ex. H
(Cipullo Interview) at ¶ 000042; see Pl.'s
Facts ¶ 8. On November 16, 2014, Parris emailed excerpts
from his interview of Cipullo, which included the accusation
that Cipullo had been threatened by the plaintiff, to the
then-Chief of the MPD, Cathy Lanier; the email was also
copied to Chief Judge Satterfield. See Pl.'s
Facts ¶ 10; Pl.'s Opp'n, Ex. J (Email
Correspondence Between Various Superior Court and MPD
Officials (“Superior Court Emails I”)) at 2-5;
see generally id., Ex. M (Email Correspondence
Between Various Superior Court, United States Attorneys'
Office, and MPD Officials (“Superior Court Emails
II”)). Chief Lanier replied to Parris, indicating that
she would “look into this.” Pl.'s Opp'n,
Ex. J (Superior Court Emails I) at 2. MPD Commander William
Fitzgerald then responded to Chief Lanier, indicating that he
was “not familiar with [the encounter between the
plaintiff and Cipullo], ” but stated that “once
[the] incident is located[, ] [he would] have detectives
re-interview and apply for a warrant.” Id.,
Ex. J (Superior Court Emails I) at 1; see Pl.'s
Facts ¶ 12-13; Pl.'s Opp'n, Ex. K (Deposition of
William Fitzgerald (Oct. 17, 2017) (“Fitzgerald
Dep.”)) 17:8-10.
Commander
Fitzgerald then forwarded Chief Lanier's email to
Lieutenant Richard Brady, asking if Lieutenant Brady was
familiar with the incident. See Pl.'s Opp'n,
Ex. L (Email Correspondence Between MPD Officers (“MPD
Emails”)) at 4. Lieutenant Brady responded that
“[t]he report was taken for miscellaneous[, ] . . . I
will have it assigned to determine if threats
occurred.” Id., Ex. L (MPD Emails) at 2. He
also attached a copy of the report to his email. See
id., Ex. L (MPD Emails) at 2. Chief Lanier then emailed
Commander Fitzgerald, stating: “This looks nothing like
the claim I got. Either way [the] [C]hief [J]udge is
threatening to bar all MPD [officers] and other armed
[officers] from court.” Id., Ex. L (MPD
Emails) at 2; see Pl.'s Facts ¶ 14.
Commander Fitzgerald replied that he “agree[d] [the
report] doesn[']t match the events described in []
Cipullo's email” and informed Chief Lanier that a
detective would “interview [] Cipullo [] and prepare an
offense report and initiate [an] investigation.”
Pl.'s Opp'n, Ex. L (MPD Emails) at 1-2.
On that
same day, Chief Judge Satterfield responded to Parris's
email containing the excerpts of Cipullo's interview and
sent copies of his email to the then-United States Attorney
for the District of Columbia Ronald Machen and Chief Lanier.
See generally id., Ex. M (Superior Court Emails II);
see Pl.'s Facts ¶ 117. Chief Judge
Satterfield urged in his email that there be a swift
resolution of the problem and stated: “[i]f this
can't be done then all police officers coming into the
building will have to be screened or barred if we can[]not
identify [the plaintiff].” Pl.'s Opp'n, Ex. M
(Superior Court Emails II) at 1; see Pl.'s Facts
¶ 15. In response to Chief Judge Satterfield's
email, United States Attorney Machen replied that
Cipullo's accusations were “obviously a serious
matter” and promised to have “someone follow up
with [] Cipullo regarding the incident.” Pl.'s
Opp'n, Ex. M (Superior Court Emails II) at 1;
see Pl.'s Facts ¶ 18. Chief Lanier also
replied to Chief Judge Satterfield's email, stating that
her officers were “following up as we speak.”
Pl.'s Opp'n, Ex. N (Email Correspondence Between
Various Superior Court and MPD Officials (“Superior
Court Emails III”)) at 1. Later that night, Chief Judge
Satterfield forwarded the responses from United States
Attorney Machen and Chief Lanier to Cipullo, see
id., Ex. M (Court Emails II) at 1; id., Ex. N
(Superior Court Emails III) at 1, who thanked Chief Judge
Satterfield “for [his] support in th[e] matter, ”
id., Ex. N (Superior Court Emails III) at 1;
see Pl.'s Facts ¶ 19.
The
following day, on November 17, 2014, eleven days after the
November 6, 2014 encounter between the plaintiff and Cipullo,
Detectives David Gargac and Charles Viggiani of the MPD
interviewed the plaintiff and his daughter separately,
see Pl.'s Opp'n, Ex. S (Arrest Warrant
Affidavit) at 2-3, and during the course of the
plaintiff's interview, the detectives informed the
plaintiff that he was “the subject of an
investigation” in “the case between [him] and
Cipullo, ” id., Ex. A (Stephens Jiggetts Dep.)
73:12, 15-16.
3.
The Plaintiff's Arrest and Prosecution
On
November 20, 2014, Cipullo emailed Chief Judge Satterfield
and stated: “I just got a call from the [United States
Attorney's Office] and they will be filing for an arrest
warrant today. Just wanted to let you know. Thanks again for
all your support.” Id., Ex. O (Email
Correspondence Between Cipullo and Chief Judge Satterfield)
at ¶ 000029; see Pl.'s Facts ¶ 20.
Chief Judge Satterfield responded: “Wow, when police
don't police their own go to the prosecutor.”
Pl.'s Opp'n, Ex. O (Email Correspondence Between
Cipullo and Chief Judge Satterfield) at ¶ 000029;
see Pl.'s Facts ¶ 21. That same day, the
plaintiff was charged with felony threats under D.C. Code
§ 22-1810, and a warrant was issued for his arrest.
Pl.'s Opp'n, Ex. S (Arrest Warrant Affidavit) at 1.
The plaintiff subsequently surrendered himself to the MPD the
following morning, id., Ex. A (Stephen Jiggetts
Dep.) 96:17-20, and was detained for “over ten hours,
” Pl.'s Facts ¶ 26.
On
February 26, 2015, the plaintiff entered into a deferred
prosecution agreement with the United States Attorney's
Office. See id. ¶ 29; see generally
Pl.'s Opp'n, Ex. P (Deferred Prosecution Agreement).
In accordance with the deferred prosecution agreement, the
United States Attorney dismissed the charges against the
plaintiff with prejudice on October 30, 2015, see
Pl.'s Opp'n, Ex. Q (Corrected Order to Seal Public
Criminal Records (“Order to Seal”)) at 1, 3, and
in his Order to Seal, Superior Court Judge Neal Kravitz
“credit[ed] [the] [plaintiff's] version of the
events that led up to [the plaintiff's] arrest, and
[found] by a preponderance of the evidence that the
[plaintiff] did not commit the offense for which he was
arrested, ” id., Ex. Q (Order to Seal) at 1.
Judge Kravitz therefore ordered the sealing of the records in
the plaintiff's criminal case. Id., Ex. Q (Order
to Seal) at 1.
B.
Procedural Background
The
plaintiff filed this action against Cipullo on November 3,
2015. See Complaint at 1. On May 23, 2016, the Court
granted the plaintiff's unopposed motion to amend his
complaint to add the District of Columbia, Cipullo's
employer, as a defendant based on the liability theory of
respondeat superior, see Order at 1 (May 23, 2016),
ECF No. 10, and the plaintiff filed his Amended Complaint
that same day, see generally Amended Complaint. In
light of information uncovered during discovery, the Court
granted the plaintiff permission to further amend his
complaint to add federal causes of action against Cipullo,
but not against the District, see Jiggetts v.
Cipullo, 285 F.Supp.3d 156, 173 (D.D.C. 2015) (Walton,
J.), which the plaintiff did on September 22, 2017, see
generally Third Amended Complaint and Jury Demand. And
on January 26, 2018, the plaintiff filed his Fourth Amended
Complaint, which is now the operative complaint in this case.
See 4th Am. Compl. at 1. After discovery closed on
March 13, 2018, see Order at 1 (Feb. 20, 2018), ECF
No. 61, the defendants jointly filed a motion for summary
judgment on May 31, 2018, see Defs.' Mot. at 1,
which is opposed by the plaintiff, see generally
Pl.'s Opp'n. This motion is the subject of this
Memorandum Opinion.
II.
STANDARD OF REVIEW
A court
can grant a Rule 56 motion for summary judgment only if
“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). “A fact is material if
it ‘might affect the outcome of the suit under the
governing law,' and a dispute about a material fact is
genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.'”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir.
2008) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). When ruling on a motion for summary
judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Anderson, 477 U.S. at 255.
“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment.” Id. The
movant has the burden of demonstrating the absence of a
genuine issue of material fact and that the non-moving party
“fail[ed] 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).
In
responding to a motion for summary judgment, the non-moving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Accordingly, the non-moving party
“must set forth specific facts showing that there [are]
genuine issue[s] for trial.” Anderson, 477
U.S. at 248. “The mere existence of a scintilla of
evidence in support of the [non-moving party's] position
[is] insufficient” to withstand a motion for summary
judgment; rather, “there must be [some] evidence on
which the jury could reasonably find for the
[non-movant].” Id. at 252.
III.
ANALYSIS
The
defendants argue that judgment should be entered in their
favor on all of the plaintiff's claims because
“[the p]laintiff's constitutional claim under 42
U.S.C. § 1983 against [] Cipullo fails because he was
not a state actor at the time of the[] [relevant] events,
” Defs.' Mot. at 1; see Defs.' Mem. at
8-11; (2) “to the extent the Court finds [that Cipullo
was a state actor], he is entitled to qualified immunity,
” Defs.' Mot. at 1; see Defs.' Mem. at
11-13; (3) “[the p]laintiff's common law claims
either fail for lack of proof or cannot be maintained against
the District based on [the p]laintiff's failure to comply
with D.C. Code § 12-309, ” Defs.' Mot. at 1;
see Defs.' Mem. at 13-21; and (4) “[the
p]laintiff's Bivens claim cannot be maintained
against [] Cipullo because he is not a federal actor, ”
Defs.' Mot. at 1; see Defs.' Mem. at
6-8.[5]
The Court will address each argument in turn.
A.
Liability under 42 U.S.C. ...