                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

WILBERT HARRIS,                                )
                                               )
                     Plaintiff,                )
                                               )
              v.                               )   Civil Case No. 11-114 (RJL)
                                               )
UNITED STATES DEPARTMENT OF                    )
VETERANS AFFAIRS,                              )
                                               )
                     Defendant.                )
                                               )


                              MEMORA~OPINION
                                  (June~' 2013) [Dkt. #20]

       Plaintiff Wilbert Harris ("Harris" or plaintiff) brings this action against the United

States Department of Veterans Affairs (the "VA" or defendant) seeking damages under

the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for false arrest and

false imprisonment, assault and battery, negligence, negligent infliction of emotional

distress, and intentional infliction of emotional distress. Am. Compl. [Dkt. #15]. Before

the Court is the defendant's Motion to Dismiss, or in the Alternative, for Summary

Judgment. Def.'s Mot. to Dismiss or for Summ. J. [Dkt. #20]. Upon consideration of the

defendant's motion, the plaintiffs opposition, the defendant's reply to the opposition

thereto, and the entire record in this case, the Court concludes that summary judgment

should be GRANTED in favor of defendant.
                                         BACKGROUND

       Plaintiff is a veteran ofthe Vietnam War. Am. Compl. ~ 3. He served in the

Marine Corps from July 18, 1966 to July 16, 1968. Decision Review Officer Decision

("DROD") [Dkt. #30-2] 1. Plaintiff receives treatment at the United States Department

of Veterans Affairs Medical Center ("VAMC") for Post-traumatic Stress Disorder

("PTSD"). Wilbert Harris Aff.      ~   2 [Dkt. #25-2]. In March 2002, Plaintiff was evaluated

by VAMC and assigned a PTSD disability rating of 50 percent. 1 DROD at 1.

       On the afternoon of November 6, 2008, Harris attended a PTSD group therapy

session at the VAMC led by John Sheets, a licensed social worker. Am. Compl. ~~ 4, 6;

Def.'s Statement ofMaterial Facts Not In Dispute ("Def.'s Facts") [Dkt. #20]          ~~   1, 3.

Harris and Sheets have had an ongoing patient-therapist relationship since approximately

2005. Decl. of David Sheets ("Sheets Decl.") [Dkt. #20-2]       ~   3. Harris attended the

session along with fifteen to twenty other veterans. Am. Compl.        ~   6. He arrived late.

Sheets Decl.   ~   6. Harris brought a newspaper article about President Barack Obama's

2008 election victory with the "inten[tion] to share what he thought was a joyous

historical moment." Pl.'s Statement of Material Facts In Dispute ("Pl.'s Facts") [Dkt.


       1 On December 7, 2011, the VA adjusted plaintiffs PTSD disability from 50
percent to 70 percent. DROD at 1. The written decision by the Decision Review Officer
indicates that plaintiff should have received a 70 percent rating in 2002. !d. at 2-5. The
adjustment does not indicate that plaintiffs PTSD symptoms increased between 2002 and
2011. See Decl. of David M. Svirsky [Dkt. #28-1] ~ 7. The DRO decision made no
change to plaintiffs physical disability rating but increased his overall disability rating.
!d.


                                                 2
#25-1] ~~ 3, 5; see also Am. Compl.~~ 8-9. Sheets asked Harris to refrain from

discussing the election because "political issues are generally avoided due to differing

opinions and have the potential for disagreement." Sheets Decl.             ~   7; see also Def.'s Facts

~   4. A verbal disagreement ensued between Harris and Sheets, and Sheets instructed

Harris to leave the room. Am. Compl.       ~~   9-10; Def.'s Facts~ 5; Pl.'s Facts~ 5. Sheets

sought assistance from the VA police. Am. Compl.             ~   10; Def.'s Facts~ 6; Pl.'s Facts~ 6.

Lieutenant William Nesbitt, Corporal Donald Christmas, and Sargent Denise Gentry

responded to the location and instructed Harris to leave the therapy room. Am. Compl.

~   11; Def.'s Facts~~ 7, 13; Pl.'s   Facts~~   6-7. Outside ofthe therapy room, Sheets told

the officers that Harris "caused a 'disturbance' and had been told to leave." Harris Aff.

~   9. Harris told police that Sheets was denying him PTSD treatment in violation of his

rights, and Harris requested the assistance of a patient advocate. De f.'s Facts ~~ 8-9;

Pl.'s Facts~~ 8-9. The officers instructed Harris that he could not re-enter the therapy

room. Am. Compl.      ~   12; Def.'s Facts~ 26. Contrary to this directive, Harris "turned

away and attempted to re-enter the room." Am. Compl.               ~   13. The VA officers

immediately restrained Harris and placed him in handcuffs. Am. Compl. ~ 14; Def.'s

Facts~   9; Pl.'s Facts~ 14.

         Following his arrest, Corporal Christmas and Sargent Gentry took Harris to the

VMAC Emergency Department. Am. Compl.                 ~   17; Def.'s Facts~ 14; Pl.'s Facts~ 19.

Harris received a bandage for a scrape on his left hand. 2 Def. 's Facts~ 28; Use of Force


         On December 12,2008, plaintiff complained of numbness and weakness in his
         2

left thumb. See Supplemental Medical Records [Dkt. #30-1] 1. The neurologist

                                                  3
Event Record [Dkt. #20-8]. After he was discharged from the Emergency Department,

Harris was placed in a holding cell and issued a citation for "disorderly conduct which

creates loud, boisterous, unusual noise." United States District Court Violation Notice

[Dkt. #20-7]; Am. Compl.   ~   18; Def.'s Facts~ 27; Pl.'s   Facts~   26; Harris Aff.   ~   18. The

citation was ultimately dismissed without a hearing. Am. Compl. ~ 18; Def.'s Facts~ 29;

Pl.'s Facts~ 27; Decl. ofPatricia Trujillo [Dkt. # 20-1]     ~   5.

       On January 18, 2011, plaintiff filed his original complaint against the VA See

Compl. [Dkt. #1]. Plaintiff filed an amended complaint on May 1, 2012. See Am.

Compl. On September 5, 2012, defendant moved for dismissal pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment

pursuant to Federal Rule of Civil Procedure 56. Def.'s Mot. to Dismiss or for Summ. J ..

The Court will treat defendant's Motion to Dismiss, or in the Alternative, for Summary

Judgment, as a motion for summary judgment. 3

                                STANDARD OF REVIEW

       Defendant moves for summary judgment pursuant to Federal Rule of Civil

Procedure 56. Summary judgment is proper where the pleadings, stipulations, affidavits,

and admissions in a case show that there is no genuine issue as to any material fact. FED.


determined that plaintiffs symptoms were consistent with progressing carpal tunnel
syndrome. !d. at 31. Plaintiff was first diagnosed with left carpal tunnel syndrome in
July of 2002. !d. at 1.

       3When a party has filed a motion to dismiss and "matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56." FED. R. Crv. P. 12(d).

                                              4
R. Crv. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must

accept as true the evidence of, and draw "all justifiable inferences" in favor of the party

opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). A genuine issue exists only where "the evidence is such that a reasonable jury

could return a verdict for the nonmoving party." !d. at 248.

                                         ANALYSIS

       Drawing all justifiable inferences in favor of the plaintiff, I conclude that no

reasonable jury could find that the arresting officers engaged in conduct amounting to

false arrest and false imprisonment, assault and battery, negligence, negligent infliction of

emotional distress, or intentional infliction of emotional distress.


       In the District of Columbia, the torts of false arrest and false imprisonment are

identical. Joyce v. United States, 795 F. Supp. 1, 4 (D.D.C. 1992), aff'd, 986 F.2d 546

(D.C. Cir. 1993). It is a required element of both torts that the detention at issue is

"unlawful." See id. A showing of probable cause constitutes a valid defense to a claim

offalse arrest or imprisonment. See Wilcox v. United States, 509 F. Supp. 381, 384

(D.D.C. 1981). "Moreover, defendant need not show probable cause in a constitutional

sense; it is sufficient that the arresting officer have a good faith, reasonable belief in the

validity ofthe arrest and detention." Gabrou v. May Dep't Stores Co., 462 A.2d 1102,

1104 (D.C. 1983). Here, Harris was arrested because he attempted to re-enter the group

therapy room against the officers' unequivocal directive not to do so. The officers,

therefore, had a good faith, reasonable belief in arresting and citing him for disorderly


                                               5
conduct. Accordingly, summary judgment of the false arrest and false imprisonment

claims must be granted in favor of defendant.

       Plaintiffs claims for assault and battery are, not surprisingly, closely related to his

claims for false arrest and false imprisonment. Where reasonable force is used to secure

an arrest, probable cause is also a defense to assault and battery. Joyce, 795 F. Supp. at 4

(citing Wilcox, 509 F. Supp. at 3 86). Indeed, officers are privileged "to use such force as

under the circumstances appears reasonably necessary" to make an arrest. Hotson v.

United States, 566 F. Supp. 1125, 1132 (D.D.C. 1983) (quotations and citations omitted).

Here, the arresting officers "[took plaintiff] to the ground and put [him] into restraints."

Uniform Offense Report [Dkt. #20-6] at 2. Following plaintiffs arrest, two of the

officers escorted him to the VMAC Emergency Department where he was treated for a

scratch on his hand. Def.'s Facts ,-r 28; Use of Force Event Record. Plaintiff later

complained of numbness and weakness in his left hand. See supra note 2. Plaintiff had

made similar complaints in the past, however, and had been diagnosed with left carpal

tunnel syndrome prior to his arrest. !d. Based on the totality of the circumstances here,

there is no basis for a trier of fact to conclude that the officers used excessive force in

executing the lawful arrest of plaintiff. Thus, defendant's motion for summary judgment

as to assault and battery must also be granted. Similarly, the government is not liable for

any negligence by the officers, and summary judgment on this claim must also be granted

in favor of the defendant.

       Finally, with respect to plaintiffs claim for intentional or negligent infliction of



                                               6
emotional distress, plaintiff must show that the arresting officers "acted in an (1) extreme

and outrageous manner (2) which was intentionally or recklessly calculated to cause

plaintiff(3) severe emotional distress." Joyce, 795 F. Supp. at 5 (citing Green v. Am.

Broad. Cos., 647 F. Supp. 1359, 1362 (D.D.C. 1986)). In addition, damages are

recoverable only where plaintiff suffers physical harm as a result of the actions alleged.

See id. (citing Green, 647 F. Supp. at 1363). Having previously determined that

plaintiffs arrest was secured with probable cause and reasonably necessary force, I

similarly conclude that the officers' actions were neither extreme and outrageous nor

intentionally or recklessly calculated to cause plaintiff severe emotion distress. See

Gabrou, 462 A.2d at 1105. Accordingly, summary judgment must be granted in favor of

defendant on plaintiffs claims for negligent infliction of emotional distress and

intentional infliction of emotional distress.

                                      CONCLUSION

       For all of the foregoing reasons, the Court GRANTS defendant's Motion for

Summary Judgment and DENIES plaintiffs Motion for Summary Judgment. An Order

consistent with this decision accompanies this Memorandum Opinion.




                                            United States District Judge


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