                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA


    DEON JACKSON

                        Plaintiff,

                  v.                                                         Civil Action No. 13-205 (CKK)

    DISTRICT OF COLUMBIA, et al,

                        Defendants.


                                                               MEMORANDUM OPINION
                                                                  (March 17, 2015)

              Plaintiff Deon Jackson filed suit against the District of Columbia and Metropolitan Police

Department Officers Joshua Boutaugh and Michael Weiss, asserting violations of Plaintiff’s civil

rights, in addition to common law tort claims in connection with a traffic stop during which

Plaintiff alleges his arm was broken. Presently before the Court is Defendants’ Motion for

Summary Judgment. Upon consideration of the pleadings,1 the relevant legal authorities, and the

record as a whole, the Court finds Defendants are entitled to qualified immunity from Plaintiff’s

42 U.S.C. § 1983 unlawful arrest and excessive force claims. The Court declines, however, to

exercise supplemental jurisdiction over Plaintiff’s common law assault and battery, false

arrest/false imprisonment, and intentional infliction of emotional distress claims and, therefore,




                                                            
              1
          Defendants’ Motion for Summary Judgment (“Defs.’ Mot.”), ECF No. [52]; Defendants’
Statement of Material Facts to which there is No Genuine Dispute (“Defs.’ Stmt.”), ECF No. [52-
1]; Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”), ECF No.
[53]; Plaintiff’s Statement of Material Facts in Dispute (“Pl.’s Stmt.”), ECF No. [53]; Defendants’
Reply to Plaintiff’s Opposition to their Motion for Summary Judgment (“Defs.’ Reply”), ECF No.
[54]; Defendants’ Response to Plaintiff’s Statement of Material Facts in Dispute (“Defs.’ Resp.
Stmt.”), ECF No. [54-1].

                                                                        1
dismisses without prejudice these claims.        Accordingly, Defendants’ Motion for Summary

Judgment is GRANTED.

                                        I.      BACKGROUND

        At the outset, the Court notes that Plaintiff has failed to comply with the Federal Rules of

Civil Procedure and the Local Civil Rules in submitting his Statement of Material Facts. Pursuant

to the Rules, the non-moving party must respond to each of the opposing party’s alleged facts with

an indication of whether the non-moving party admits or denies the fact. See LCvR 7(h)(1); Fed.

R. Civ. P. 56(c). Plaintiff has provided the Court with a Statement of Material Facts, but Plaintiff’s

Statement does not respond to each of Defendant’s alleged facts as required by the Federal and

Local Rules. Accordingly, the Court could treat Defendants’ Statement of Material Facts as

conceded to the extent Plaintiff has failed to respond to certain factual allegations. See LCvR

7(h)(1) (“In determining a motion for summary judgment, the court may assume that facts

identified by the moving party in its statement of material facts are admitted, unless such a fact is

controverted in the statement of genuine issues filed in opposition to the motion.”); Fed. R. Civ. P

56(e) (“If a party fails to . . . properly address another party’s assertion of fact as required by Rule

56(c), the court may . . . consider the fact undisputed for purposes of the motion”).

        Although Plaintiff’s noncompliance with the Rules has made resolution of Defendants’

Motion more complicated, Defendants have relied primarily on the undisputed facts as presented

by Plaintiff in Plaintiff’s Statement of Material Facts and Opposition. Accordingly, the Court will

take Defendants’ lead and rely on the facts as stated by Plaintiff. For the purposes of setting forth

the factual background of this case, the Court will cite to the facts in Defendants’ Statement of

Facts since it provides a fuller exposition of the facts in this case than Plaintiff’s Statement. The




                                                   2
Court will cite to Plaintiff’s Statement of Facts or Opposition when a fact is disputed or further

explicated by Plaintiff.

    A. Factual Background

         On or about February 18, 2012, Defendants Boutaugh and Weiss observed Plaintiff driving

along Brentwood Road, Northeast, in Washington, D.C. Defs.’ Stmt. ¶ 2. Defendants Weiss and

Boutaugh “believed Plaintiff was driving erratically, and observed him commit traffic infractions,

including crossing the double line.” Id. ¶ 3. As a result, Defendants initiated a stop of Plaintiff’s

vehicle. Id. ¶ 5. Plaintiff disputes that he committed any traffic violations and claims that “he did

not swerve out of his lane and had no problems maintaining control of his vehicle at all times.”

Pl.’s Stmt. ¶ 1. Plaintiff “submits the most that Defendants could have observed on that evening

as they were driving behind him, was his car hesitating on a couple of occasions due to a

transmission problem.” Pl.’s Opp’n at 13 (citing Pl.’s Ex. A (Jackson Depo.), ECF No. [53-1], at

182:10-183:9); Defs.’ Stmt. ¶ 4 (citing to Defs.’ Ex. C (Jackson Depo.), ECF No. [52-4], at 23:19-

24:5).

         After initiating a stop of Plaintiff’s vehicle, Defendant Weiss approached Plaintiff’s vehicle

on the driver side, while Defendant Boutaugh approached the vehicle on the passenger side. Defs.’

Stmt. ¶ 7. Plaintiff was asked to roll down his driver side window, but Plaintiff explained to the

officers that he was unable to do so because his window was broken. Id. ¶ 8. Instead, Plaintiff

opened his driver side door to give Defendant Weiss his license and registration. Id. ¶¶ 9-10.

Defendant Weiss then returned to the squad car and called for a field sobriety officer while

Defendant Boutaugh remained at the passenger side of Plaintiff’s vehicle. Id. ¶¶ 10-12. Defendant

Boutaugh “believed that Plaintiff’s words were slurred as he spoke and he was slow to respond to

questions.” Id. ¶ 13. Plaintiff contends that his “speech was not slurred and he was not slow to




                                                   3
respond to the officers’ questions.” Pl.’s Stmt. ¶ 3. Defendant Boutaugh explained to Plaintiff

that a field sobriety officer had been contacted and would administer a field sobriety test to

Plaintiff, but Plaintiff “indicated that he would not submit to a field sobriety test.” Defs.’ Stmt. ¶¶

14-15. Plaintiff alleges that he was asked if he would take a breathalyzer test and that he refused

to submit to a breathalyzer test, not a field sobriety test. Pl.’s Stmt. ¶ 13; Pl.’s Opp’n at 6 (citing

Pl.’s Ex. A (Jackson Depo.), at 50:2-51:2; 68:7-20; Pl.’s Ex. C (Jackson Decl.), ECF No. [53-3].

The Court finds this dispute to be of no moment as what is ultimately material from this fact is

Plaintiff’s refusal to submit to an evaluation of his sobriety.2

              Plaintiff then closed the driver side door. Defs.’ Stmt. ¶ 16. Defendant Boutaugh “did not

know what Plaintiff might do next and believed he may attempt to drive away.” Id. ¶ 17. Plaintiff

contends that he informed Defendant Boutaugh that he was going to close his door “because he

was cold.” Pl.’s Stmt. ¶ 6. Defendant Boutaugh then went to Plaintiff’s driver side door to place

him under arrest. Defs.’ Stmt. ¶ 18. Defendant Boutaugh3 proceeded to pull Plaintiff out of the

vehicle and, in so doing, “applied pressure to Plaintiff’s arm.” Id. ¶¶ 19-20. In Plaintiff’s factual

recitation, Plaintiff further explains that “as Defendant Boutaugh is pulling Plaintiff out of the car,

he bends and twists Plaintiff’s arm behind his back while at the same time bending his left hand in

towards his forearm in a goose neck position, and at the same time, yanking his arm up towards


                                                            
              2
         Moreover, in Defendants’ Reply, Defendants appear to agree that Plaintiff was asked to
take a breathalyzer test, but refused to submit to such a test.
 
              3
                    There is a factual dispute as to whether Defendant Weiss was involved in restraining
Plaintiff when Plaintiff’s arm broke or whether he was still at the squad car. See Defs.’ Stmt. ¶
21; Pl.’s Stmt. ¶ 7. The Court will address the contours and impact of this factual dispute in Part
A.ii. of the Discussion. However, to avoid unnecessary confusion in the recitation of the Factual
Background, the Court will only reference Defendant Boutaugh’s involvement in restraining
Plaintiff since all parties are in agreement that Defendant Boutaugh was restraining Plaintiff when
his arm broke.
 


                                                               4
his shoulder area” and “pushing Plaintiff in towards his car.” Pl.’s Opp’n at 7 (citing Pl.’s Ex. A

(Jackson Depo.), at 51:11, 53:12-58:1; Pl.’s Ex. B (Boutaugh Depo.), ECF No. [53-2], at 41:17-

42:22). Plaintiff’s arm broke almost immediately. Defs.’ Stmt. ¶ 20.

              Once Plaintiff’s arm broke and went limp, “Defendant Boutaugh dropped Plaintiff’s arm

and no additional pressure was applied” and an ambulance was called.4 Id. ¶ 23. Plaintiff was

taken to the hospital by ambulance. Id. ¶ 24. At the hospital, “Plaintiff refused a breathalyzer and

blood alcohol test when asked by the District’s field sobriety officer.” Id. ¶ 25. After his release

from the hospital, Plaintiff was transported to the police station where he was charged with Assault

on a Police Officer and traffic violations. Id. ¶ 26. The traffic violation charges were dismissed

and the charge of Assault on a Police Officer was later dropped for want of prosecution. Id. ¶¶ 27-

28.

       B. Procedural Background

              Plaintiff filed suit on February 15, 2013, asserting eight causes of action; specifically, one

count of deprivation of civil rights under color of law in violation of 42 U.S.C. § 1983 as to all

Defendants (Count I), and seven common law tort claims. See generally Compl., ECF No. [1].



                                                            
              In the factual recitation in Plaintiff’s Opposition, Plaintiff contends that Defendant
              4

Boutaugh told Plaintiff that he didn’t believe that Plaintiff’s arm was broken and did not let go of
Plaintiff’s arm—even though Plaintiff had screamed that it was broken—until Defendant Weiss
said that “he believed the arm was broken, at which time Plaintiff’s arm went limp and Defendant
Boutaugh finally released the arm.” Pl.’s Opp’n at 7 (citing Pl.’s Ex. A (Jackson Depo.), at 51:19,
55:6-8, 56:13-57:8, 58:2-59:22); Pl.’s Ex. C (Jackson Decl.)). However, Plaintiff’s cited
deposition testimony and declaration do not support this factual allegation. Instead, Plaintiff
testified that Defendant Boutaugh let go of Plaintiff’s arm once his arm broke and went limp and
“drop[ped] to the left side of [his] body.” Pl.’s Ex. A (Jackson Depo.), at 58:17-59:7. Plaintiff
testifies that Officer Boutaugh told Plaintiff that his arm is not broken and that Officer Weiss told
Officer Boutaugh that Plaintiff’s arm is broken, but Plaintiff cannot remember if Officer Boutaugh
made that remark before or after he left go of Plaintiff’s arm. Id. at 59:8-13. Accordingly, the
Court does not find there to be a genuine dispute as to whether Plaintiff’s arm was released
promptly after it was broken. 

                                                               5
The District of Columbia moved to dismiss Count I for failure to state a claim as to Defendant

District of Columbia. The Court granted Defendants’ Motion to Dismiss and dismissed without

prejudice Plaintiff’s § 1983 claims against Defendant District of Columbia. See Mem. Op. (June

13, 2013), ECF No. [19]. Plaintiff subsequently sought leave to file an amended complaint which

the Court granted except as to Plaintiff’s § 1983 claim against the District as it “remain[ed]

substantively identical to the Count I that the Court dismissed in its June 13, 2013, Order.” Order

(Nov. 18, 2013), ECF No. [32].

       Plaintiff’s Amended Complaint, see ECF No. [33], asserts the same causes of action as

Plaintiff’s original Complaint. Specifically, Plaintiff asserts the following causes of actions

against the following Defendants: (1) deprivation of civil rights under color of law in violation of

42 U.S.C. § 1983 as to Defendants Weiss and Boutaugh (Count I); (2) assault/battery against

Defendant Boutaugh and the District of Columbia; (3) intentional infliction of emotional distress

as to all Defendants; (4) false arrest/false imprisonment as to all Defendants; (5) malicious

prosecution as to all Defendants; (6) negligent failure to properly train and supervise against the

District of Columbia; (7) negligent hiring/retention as to the District of Columbia; and (8)

negligence as to all Defendants.

       Presently before the Court is Defendants’ Motion for Summary Judgment as to all claims

in Plaintiff’s Amended Complaint. As Plaintiff has filed an Opposition to Defendants’ Motion for

Summary Judgment and Defendants filed a Reply, this Motion is now ripe for the Court’s review.

                                    II.    LEGAL STANDARD

       Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar summary




                                                 6
judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor

may summary judgment be avoided based on just any disagreement as to the relevant facts; the

dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a

reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record – including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence – in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis

in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass’n of

Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

Moreover, where “a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact,” the district court may “consider the fact undisputed for purposes

of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether




                                                 7
it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-

52.    In this regard, the non-movant must “do more than simply show that there is some

metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal

citations omitted).

                                         III.   DISCUSSION

          Defendants move for summary judgment on all of Plaintiff’s claims in his Amended

Complaint. In his Opposition to Defendants’ Motion for Summary Judgment, Plaintiff concedes

judgment on his malicious prosecution and abuse of process claim (Count V) as well as his

negligence claims (Counts VI through VIII). Accordingly, the Court shall only address Plaintiff’s

§ 1983 claims as they relate to Defendants Boutaugh and Weiss (Count I); Plaintiff’s

assault/battery claim against Defendants Boutaugh and the District of Columbia (Count II);

Plaintiff’s intentional infliction of emotional distress claim against all Defendants (Count III); and

Plaintiff’s false arrest claim against all Defendants (Count IV). Ultimately, the Court finds

Defendants are entitled to judgment on Plaintiff’s § 1983 claims. As to Plaintiff’s common law

claims, the Court shall, in its discretion, decline to exercise supplemental jurisdiction over these

claims.

      A. Section 1983 Claims

          Section 1983 provides a remedy against “any person” who, under color of state law,

deprives another of rights protected by the Constitution. 42 U.S.C. § 1983. Count I of Plaintiff’s

Complaint states in conclusory form that “[t]he Defendants [sic] actions arise under the United

States Constitution, particularly under the provisions of the First, Fourth, Fifth, Sixth and




                                                  8
Fourteenth Amendments.” Compl. ¶ 16. In response to Defendants’ Motion for Summary

Judgment, Plaintiff concedes that he cannot sustain a Constitutional claim under the First, Fifth,

Sixth, or Fourteenth Amendments. See Pl.’s Opp’n at 8-9. Accordingly, the Court shall only

analyze Plaintiff’s claim that Defendants Boutaugh and Weiss deprived Plaintiff of his Fourth

Amendment rights.

       Plaintiff alleges that the Defendant officers violated the Fourth Amendment by both

unlawfully arresting Plaintiff and by using excessive force in arresting Plaintiff. Defendants argue

that the evidence in the record does not support a finding that the officers unlawfully arrested

Plaintiff or used excessive force against Plaintiff and that Defendants are entitled to qualified

immunity for their actions.

       A plaintiff may not recover under § 1983 if the defendant is entitled

to qualified immunity. See Scott v. Harris, 550 U.S. 372, 376 (2007). “Qualified immunity shields

federal and state officials from money damages unless a plaintiff alleges facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al–Kidd, 131 S.Ct. 2074, 2080

(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[C]onduct violates clearly

established law when, at the time of the challenged conduct, the contours of a right are sufficiently

clear that every reasonable officer would have understood that what he is doing violates that

right.” Id. at 2083 (internal quotation marks and notations omitted) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). The district court has the discretion to decide “which of

the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).




                                                  9
        The Court shall address Plaintiff’s § 1983 unlawful arrest and excessive force claims in

turn.

          i.    Unlawful Arrest

        Defendants claim that they are entitled to qualified immunity because they had probable

cause to arrest Plaintiff and, thus, did not violate Plaintiff’s constitutional rights in arresting him.

Specifically, Defendants contend that “where it is undisputed that the officers observed that

Plaintiff had driven erratically, he appeared intoxicated, and Plaintiff stated that he would refuse

sobriety testing, probable cause existed to arrest Plaintiff for driving under the influence.” Defs.’

Mot. at 8. Plaintiff responds that the “facts relevant to questions of probable cause and whether

this was a lawful arrest are strongly contested in this case” and, thus, summary judgment is not

appropriate as to this claim. Pl.’s Opp’n at 16.

        “Because it is well-established that ‘an arrest without probable cause violates the [F]ourth

[A]mendment,’ the defendant is entitled to qualified immunity only if ‘a reasonable officer could

have believed that probable cause existed’ to arrest the plaintiff . . . .” Ronkin v. Vihn, --- F.Supp.3d

--- , 2014 WL 5280682, *4 (D.D.C. Oct. 16, 2014) (quoting Martin v. Malhoyt, 830 F.2d 237, 262

(D.C. Cir. 1987) & Hunter v. Bryant, 502 U.S. 224, 228 (1991))).

        The assessment of probable cause is an objective one. An arrest is supported by
        probable cause if, ‘at the moment the arrest was made, . . . the facts and
        circumstances within [the arresting officers’] knowledge . . . were sufficient to
        warrant a prudent man in believing’ that the suspect has committed or is committing
        a crime.
Wesby v. District of Columbia, 765 F.3d 13, 20 (D.C. Cir. 2014) (quoting Beck v. Ohio, 379 U.S.

89, 91 (1964) (alteration in original)). Courts must “evaluate[ ] the evidence from the perspective

of the officer, not the plaintiff.” Moorehead v. District of Columbia, 747 A.2d 138, 147 (D.C.

2000). Furthermore, “[i]t must always be remembered that probable cause is evaluated ‘from the



                                                   10
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’

” Frazier v. Williams, 620 F.Supp.2d 103, 108 (D.D.C. 2009) (quoting and citing Wolfe v. Perry,

412 F.3d 707, 717 (6th Cir. 2005)).

       Plaintiff argues that the Defendant officers did not have probable cause to conduct an

investigatory stop of Plaintiff’s vehicle, nor did they have probable cause to arrest Plaintiff for any

crime. Defendants respond that, even accepting Plaintiff’s version of the facts, the officers had

probable cause to stop Plaintiff’s vehicle because Plaintiff admits that he was “stalling,”

“hesitat[ing],” and “lurch[ing]” as he drove along Brentwood Road. Defs.’ Mot. at 15; see Pl.’s

Ex. A (Jackson Depo.), at 182:10-183:9. It is undisputed that the officers observed Plaintiff driving

erratically at night. The Court finds that such an observation is sufficient to support a “reasonable

suspicion” that Plaintiff was driving while intoxicated, which is actually all that is needed for an

officer to conduct a lawful investigatory stop of a vehicle. United States v. Johnson, 519 F.3d 478,

481 (D.C. Cir. 2008) (“In Terry [v. Ohio], the Supreme Court held that ‘the police can stop and

briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported

by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.’”).

Indeed, Plaintiff’s own expert, Gerard Busnuk, testified at deposition that the officers had

reasonable suspicion that Plaintiff had been driving under the influence and, thus, had reason to

stop and detain him. Defs.’ Ex. F (Busnuk Depo.), ECF No. [52-7], at 74:6-11 (“My opinion is

that at the time the arrest was made, . . . the officers had reason to stop and detain Mr. Jackson . .

. .”); 98:22-99:5 (“Q. And you, in fact, believe that they did have reasonable suspicion that [Mr.

Jackson was driving under the influence in order to stop and detain him for further investigation]

– A. Based on their written documentation, yes.”).




                                                  11
              As for the officers’ ultimate arrest of Plaintiff, Defendants argue that the facts known to

the officers provided probable cause to arrest Plaintiff for either driving under the influence

(“DUI”), reckless driving, or failure to obey. Defs.’ Mot. at 17-18; Defs.’ Reply at 7-11. An arrest

is valid so long as “the [arresting] officers had probable cause to believe [the plaintiff] had

committed any crime.” United States v. Broadie, 452 F.3d 875, 881 (D.C. Cir. 2006) (alterations

and emphasis added). An officer’s “subjective reason for making the arrest need not be the

criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543

U.S. 146, 153 (2004). Accordingly, as the Court finds that the officers had probable cause to arrest

Plaintiff for DUI, the Court need not evaluate whether the officers had probable cause to arrest

Plaintiff for reckless driving or failure to obey.

              Pursuant to D.C. Code § 50-2201.05(b)(1)(A)(i), “[n]o person shall operate or be in

physical control of any vehicle in the District . . . (II) While under the influence of intoxicating

liquor or any drug or combination thereof.”5 Here, it is undisputed that the officers observed

Plaintiff driving erratically and that Plaintiff refused when asked to take a breathalyzer test.6 It is

reasonable for an officer to view Plaintiff’s refusal to submit to a breathalyzer as evidence of guilt.



                                                            
              5
         As Plaintiff was arrested in February 2012, the Court cites to the D.C. Code provision
that was operative at the time of Plaintiff’s arrest.
              6
          Defendants also argue that it is undisputed that Plaintiff was answering questions slowly
and with slurred speech even though Plaintiff specifically states that he was not answering
questions slowly or with slurred speech. Defs.’ Reply at 9 n.2. Defendants argue that Officer
Boutaugh interpreted Plaintiff’s responses to be slow and slurred and that Plaintiff cannot speak
to the officer’s interpretation. The Court does not agree that this fact is undisputed. While the
Court must consider whether probable cause existed to arrest Plaintiff based on the facts known to
the arresting officer and based on the officer’s perspective, not the plaintiff’s, this does not mean
that a plaintiff cannot dispute the validity and veracity of the arresting officer’s alleged perception
of the facts. Accordingly, the Court will not consider this fact among the undisputed facts known
to the officers at the time of Plaintiff’s arrest.



                                                               12
See Stevenson v. District of Columbia, 562 A.2d 622, 624 (D.C. 1989) (citing D.C. Code § 40-

505(c)7) (“appellant’s refusal to take a blood alcohol test could properly be considered against him

as evincing consciousness of guilt.”); D.C. Code § 50-1902 (2001) (“Any person . . . who operates

a motor vehicle within the District shall be deemed to have given his or her consent, . . . to 2

chemical tests of the person’s blood, urine, or breath, for the purpose of determining blood-alcohol

content or the blood-drug content.”); D.C. Code § 50-1905(c) (2001) (“evidence of . . . refusal to

submit [to chemical testing] shall be admissible in any civil or criminal proceeding arising as a

result of the acts alleged to have been committed by the person prior to the arrest”); see also Miller

v. Harget, 458 F.3d 1251, 1260 (11th Cir. 2006) (citing to Ga. Code Ann. § 40-5-67.1(b)(2) which

provides that an individual’s refusal to submit to a blood-alcohol test is admissible as evidence at

trial and finding that “[i]t was reasonable for Officer Harget to view th[e] choice [to refuse a

breathalyzer test] as evidence of guilt”); Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.

2007) (holding that “probable cause developed when twice Plaintiff refused to participate in a

field sobriety test”); Summers v. State of Utah, 927 F.2d 1165, 1166 (10th Cir. 1991) (“The

undisputed facts regarding plaintiff’s operation of his vehicle, the officer’s scent of alcohol

emanating from the vehicle and plaintiff’s refusal to take a field sobriety test substantiate the . . .

conclusion” that the officer had probable cause). Accordingly, the Court concludes that a prudent

officer could conclude from the combination of Plaintiff’s erratic driving and the refusal to take

the breathalyzer test that Plaintiff had in fact been drinking. The Court would also note that,

coupled with Plaintiff’s refusal to take the breathalyzer test, the fact that Defendant Boutaugh, as

discussed in the following section, reasonably inferred that Plaintiff was attempting to flee contact



                                                            
              7
         The D.C. Code provision relied on in Stevenson is substantively the same as the parallel
provision operative at the time of Plaintiff’s arrest—D.C. Code § 50-1905(c) (2001).

                                                               13
with the officers when he closed his door, further supports a finding that the officers had probable

cause for Plaintiff’s arrest.

        Plaintiff principally argues that it was “improper for Defendants to arrest Plaintiff prior to

obtaining an official opinion and authorization from a certified field sobriety officer that there was

in fact probable cause to arrest for DUI.” Pl.’s Opp’n at 23-24. Plaintiff cites to Metropolitan

Police Department (“MPD”) General Order 502.02 for this proposition. Id. MPD General Order

502.02 states that “[i]f a [Standardized Field Sobriety Tests (“SFST”)] trained member is not

available or the driver refuses to participate in a SFST, the member shall request through [the

Office of Unified Communications] a supervisor respond to the scene to ensure probable cause is

established prior to an arrest.” Pl.’s Ex. E (MPD General Order), ECF No. [53-5], at 7. However,

Plaintiff agrees with Defendants that the MPD General Order “does not specifically preclude arrest

without the approval of an MPD officer.” Pl.’s Opp’n at 23. Plaintiff does argue that General

Orders “are the policy and procedures that MPD officers are required to follow and put into

practice in the course of exercising their duties,” but Plaintiff does not cite to any authority in

support of this contention. Id. In any event, “[i]t is well-settled that evidence tending to show a

violation of an internal operating procedure or guideline existing at the state law level is not only

insufficient to prove a violation of the United States Constitution, but it is also irrelevant to such a

claim.” Fernandors v. District of Columbia, No. 02-2001, 2006 WL 449300, *1 (D.D.C. Feb. 23,

2006) (citing United States v. Moore, 36 F.3d 127, 1994 WL 535734, *2 (D.C. Cir. 1994)).

Moreover, the Court notes that MPD General Order 502.02 does not state that the absence of a

supervisor’s input means that an officer does not have probable cause that a DUI has been

committed.




                                                  14
       As the Court finds that Defendants Boutaugh and Weiss had “an objectively reasonable

basis for believing that the facts and circumstances surrounding [Plaintiff’s] arrest were sufficient

to establish probable cause,” Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993) (citing Malley

v. Briggs, 475 U.S. 335, 341 (1986)), they are immune from Plaintiff’s suit for damages.

         ii.   Excessive Force

       Plaintiff next argues that the officers used excessive force when they pulled Plaintiff out of

his car, twisted his left arm behind him, and his left arm broke. Defendants contend that “Plaintiff

has not presented evidence that excessive force was used by either Defendant in removing him

from the vehicle or trying to handcuff him.” Defs.’ Mot. at 13.

       It is well-established that police officers have the authority “to use some degree of physical

coercion or threat thereof” in making an arrest.        Graham v. Connor, 490 U.S. 386, 396

(1989). “ ‘[N]ot every push or shove, even if it may later seem unnecessary in the peace of a

judge’s chambers,’ violates the Fourth Amendment.”           Id. (citation omitted).    If the court

“determines that the amount of force applied was objectively reasonable under the circumstances,

the officer is entitled to qualified immunity.” Gee v. District of Columbia, No. 04-1797, 2005 WL

3276272, *2 (D.D.C. Aug. 22, 2005) (citing Graham, 490 U.S. at 396-397). To determine whether

an officer’s use of force was reasonable, the court must consider various factors including: “the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396. Although the severity of injury “is not by itself the basis for

deciding whether the force used was excessive, . . . it is a relevant factor.” Wardlaw, 1 F.3d at

1304 n.7.




                                                 15
       “The calculus of reasonableness must embody allowance for the fact that police officers

are often forced to make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham,

490    U.S.    at   396–97.        A    defendant’s     motion    for    summary      judgment     on

a § 1983 excessive force claim “is to be denied only when, viewing the facts in the record and all

reasonable inferences derived therefrom in the light most favorable to the plaintiff, a reasonable

jury could conclude that the excessiveness of the force is so apparent that no reasonable officer

could have believed in the lawfulness of his actions.” Wardlaw, 1 F.3d at 1303 (citing Martin v.

Malhoyt, 830 F.2d 237, 253–54 (D.C. Cir. 1987)); see also Oberwetter v. Hilliard, 639 F.3d 545,

555 (D.C. Cir. 2011) (quoting Wardlaw, 1 F.3d at 1303).

       As an initial matter, the Court addresses the parties’ arguments regarding whether there is

a factual dispute about Defendant Weiss’s involvement in removing Plaintiff from his car and

twisting, and ultimately breaking, Plaintiff’s arm. Defendants argue that judgment should be

entered in favor of Defendant Weiss because Plaintiff testified that Defendant Weiss “played no

role in breaking his arm” and, at the summary judgment stage, the facts must be viewed in the light

most favorable to Plaintiff. Defs.’ Mot. at 13; 13 n.2; Defs.’ Resp. Stmt. ¶ 7. Defendants’

Statement of Material Facts to which there is No Genuine Dispute simply relies on Plaintiff’s

testimony that Defendant Weiss was not involved in applying any force to Plaintiff’s arm. See

Defs.’ Stmt. ¶ 22 (“Plaintiff testified that Defendant Weiss was not involved in applying any force

to Plaintiff’s arm.”). However, despite Plaintiff’s deposition testimony that Defendant Weiss was

not involved in physically restraining Plaintiff, Plaintiff alleges in his Statement of Material Facts

in Dispute that there is a dispute as to “[w]hether [O]fficer Weiss was involved with applying force

to, and the breaking of Plaintiff’s arm, and Defendant’s [sic] Weiss’ location at the time his arm




                                                 16
was broken.” Pl.’s Stmt. ¶ 7. Indeed, Defendants acknowledge in a footnote in their Motion for

Summary Judgment that Defendant Weiss testified during his deposition that he was “involved in

attempting to assist Defendant Boutaugh with handcuffing Plaintiff.” Defs.’ Mot. at 13 n.2. The

Court’s review of both officers’ deposition testimony indicates that they each testified that they

pulled on Plaintiff’s left arm and that they were both holding on to Plaintiff’s left arm when they

felt it break. Pl.’s Ex. B (Boutaugh Depo.), at 46:19-47:1; 49:3-9; 50:2-4; Pl.’s Ex. D (Weiss

Depo.), ECF No. [53-4], at 33:24-34:22.         Given the stark inconsistency in Plaintiff’s and

Defendants’ deposition testimony, Plaintiff’s unwillingness to concede that there is not a dispute

as to this material fact, and the Court’s obligation to view the facts in the light most favorable to

Plaintiff, the Court finds that there is a factual dispute about Defendant Weiss’s involvement in

restraining Plaintiff and will thus not enter summary judgment in Defendant Weiss’s favor on the

basis that he was not involved in the alleged excessive force.

       The Court does find, however, that the force used, whether by Defendant Boutaugh alone

or Defendants Boutaugh and Weiss together, was not so excessive “that no reasonable officer could

have believed in the lawfulness of his actions.” Wardlaw, 1 F.3d at 1303. Viewing the facts in

the light most favorable to Plaintiff, after Plaintiff’s vehicle had been stopped by the officers,

Defendant Weiss ordered Plaintiff to roll down his window, but since Plaintiff could not do so,

Plaintiff opened his driver side door. While Defendant Weiss checked Plaintiff’s license and

registration back at the squad car and called for a Field Sobriety officer, Plaintiff kept his driver

side door open and spoke to Defendant Boutaugh through the open window on the passenger side

of the car where Defendant Boutaugh was standing. Defendant Boutaugh asked Plaintiff if he

would agree to take a breathalyzer test to which Plaintiff replied “no.” According to Plaintiff, he

then told Defendant Boutaugh that he was going to close his driver side door because he was cold




                                                 17
and proceeded to close the door. Defendant Boutaugh, believing Plaintiff might attempt to drive

away, immediately ran to the driver side of the car, opened the driver side door, and pulled Plaintiff

out of the vehicle by his left arm.8 Defendant Boutaugh, with the assistance of Defendant Weiss,

bent and twisted Plaintiff’s arm behind his back while applying pressure to Plaintiff’s arm.

Plaintiff’s arm then broke and the officers let go of his arm.

              Several factors suggest that Defendants’ use of force was not so excessive that no

reasonable officer could have believed in the lawfulness of his actions. First, the officers could

have reasonably believed that Plaintiff was trying to resist or escape when he closed the door of

his vehicle. Plaintiff had just refused to cooperate and take a breathalyzer test. By then closing

his door, Plaintiff had also effectively refused to obey Defendant Weiss’s order to open his driver’s

side window since Plaintiff had opened his door in lieu of his window and Plaintiff had not been

told that he could close the door. Although Plaintiff alleges that he told Officer Boutaugh that he

was closing his door “because he was cold,” nothing in the record indicates that the officers heard

Plaintiff explain why he was closing the door. Even if they did hear Plaintiff, it was not

unreasonable for Officer Boutaugh to believe that Plaintiff was actually closing his door in an

attempt to drive away. See Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (“Police

officers have authority to use ‘some degree of physical coercion’ when arresting a suspect, and

[appellant’s] refusal to obey [the officer’s] order prior to his arrest suggested that he might try to


                                                            
              8
          Although the Court does not rely on these facts since they are disputed, for the sake of
completeness, the Court notes that Defendant Boutaugh testified at deposition that after Plaintiff
closed the driver side door, Defendant Boutaugh told Plaintiff to keep the door open at which point
Plaintiff opened the door back up, but then closed the door again. Defendant Boutaugh further
testified that he then walked to the driver side of the car and tried to open Plaintiff’s driver side
door, but it was locked and Plaintiff refused to open the door after Defendant Boutaugh again
ordered him to open it. According to Defendant Boutaugh’s testimony, Plaintiff eventually opened
the driver side door and Defendant Boutaugh pulled him out. Pl.’s Ex. B (Boutaugh Depo.), at
30:10-35:10.

                                                               18
resist or escape.” (internal citation omitted)); Oberwetter, 639 F.3d at 555 (officer’s use of force

was not excessive because officer was reasonably concerned about “interference or escape” after

plaintiff refused to obey officer’s orders to stop dancing and leave the premises (citing Wasserman,

557 F.3d at 641)).

        Furthermore, the nature and degree of the “physical coercion” the officers used to restrain

Plaintiff was “not markedly different from what we would expect in the course of a routine arrest.”

Id. Indeed, the action of pulling a person out of his or her car, bending the person’s arm behind

his or her back, and applying pressure, as Plaintiff alleges the officers here did, is regularly found

not to be excessive force for effectuating an arrest. See id. at 548 (holding that officer did not use

excessive force by “ripping apart [plaintiff’s] earbud, shoving her against a pillar, and violently

twisting her arm” when plaintiff refused officer’s order to stop dancing and leave the Jefferson

Memorial at night); Wasserman, 557 F.3d at 641 (holding that officer did not use excessive force

by “forcefully press[ing] upwards on [plaintiff’s] arm before handcuffing him, causing him pain”

when plaintiff had refused officer’s order to stop and answer some questions, but was “not moving

or offering any resistance” after officer first touched his left shoulder); Martin, 830 F.2d at 262

(holding that officer who believed plaintiff was going to flee in his car did not use excessive force

by “brutally grabb[ing] [plaintiff] about [the] waist, . . . thr[owing] [him] back into [his] driver seat

. . . [,] slamm[ing] [the] door on one of [plaintiff’s] legs,” and later “grabb[ing] [plaintiff’s] arms[,]

pull[ing] them behind [plaintiff’s] back[,] and immediately plac[ing] [plaintiff] in handcuffs while

pushing [him] up against [the] limousine,” aggravating plaintiff’s previous shoulder injury); cf.

Johnson v. District of Columbia, 528 F.3d 969, 974 (D.C. Cir. 2008) (holding that a “reasonable

officer would not have repeatedly kicked the surrendering suspect in the groin”). Courts have

found such force not to be excessive even when the individual being arrested has not resisted or




                                                   19
attempted to flee. See, e.g., Robinson v. District of Columbia, No. 03-1455, 2006 WL 2714913,

*4 (D.D.C. Sept. 22, 2006) (holding that officer did not use excessive force by pushing plaintiff,

shoving him onto the hood of his car, and holding plaintiff down while putting handcuffs on

plaintiff’s wrists, even though plaintiff did not resist or attempt to flee).

              The only fact that gives the Court pause is the fact that Plaintiff’s arm was broken as a

result of the force used by the officers. However, this is the only fact suggesting that the force

used by the officers may have been excessive. The United States Court of Appeals for the District

of Columbia Circuit has explained that the severity of the injury itself is not a basis for deciding

whether the force used was excessive; it is only a factor to consider in light of other factors.

Wardlaw, 1 F.3d at 1304 n.7 (“Although the severity of [plaintiff’s] injuries is not by itself the

basis for deciding whether the force used was excessive, it does provide some indication of the

degree of force [the officer] used. Thus, it is a relevant factor under a ‘test of reasonableness’ ”);

Oberwetter, 639 F.3d at 556 (explaining that the fact that the officer did not cause plaintiff any

serious bodily injury “tends to confirm that the use of force was not excessive”). As the other

factors considered by the Court suggest that the officers had a reasonable concern about escape

and executed a reasonable maneuver for subduing an individual—even an individual who is not

resisting as Plaintiff claims he was not—the Court finds that the officers could have reasonably

believed in the lawfulness of their actions even though Plaintiff’s arm was broken.9 Accordingly,

the Court grants Defendants summary judgment on Plaintiff’s § 1983 excessive force claim.




                                                            
              9
         Although the Court does not rely on these facts since they are disputed, for the sake of
completeness, the Court notes that the officers testified at deposition that once Plaintiff was pulled
out of his vehicle he resisted the officers’ attempts to restrain and handcuff him by “flailing” his
right arm and “torqueing” his body. Pl.’s Ex. D (Weiss Depo.), at 30:18-31:5; Pl.’s Ex. B
(Boutaugh Depo.), at 36:12-39:20.

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    B. Plaintiff’s Common Law Claims

       The Court has authority to exercise supplemental jurisdiction over Plaintiff’s remaining

common law claims pursuant to 28 U.S.C. § 1367(a), which potentially confers jurisdiction over

“all other claims that are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the United States Constitution.”

However, the statute also provides that “[t]he district courts may decline to exercise supplemental

jurisdiction over a claim . . . if (1) the claim raises a novel or complex issue of State law, (2) the

claim substantially predominates over the claim or claims over which the district court has original

jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction,

or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”

Id. § 1367(c). The Court finds it most appropriate to abstain from exercising supplemental

jurisdiction over Plaintiff’s common law claims pursuant to §§ 1367(c)(3) and (4).

       First, the Court has resolved and dismissed Plaintiff’s § 1983 claims, the only claims over

which the Court had original jurisdiction in this case. Second, the Court finds that there are

compelling reasons for not exercising jurisdiction over these claims and allowing the local court

system to decide what are ultimately local issues. Specifically, while it is clear that a violation of

MPD General Order 502.02 does not impact the Court’s Fourth Amendment analysis, it is less

clear whether such a violation would impact Plaintiff’s common law claims. The parties have not

directed the Court to any case law—nor has the Court found any—analyzing the impact of an

officer’s violation of a General Order on the officer’s probable cause determination or on the

general legality of the arrest. Without such guidance, the Court finds it most appropriate for the

local court system to take the lead in determining the impact of a violation of a local operating

procedure on a local cause of action relating to an arrest of local interest. As Plaintiff’s remaining




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common law claims are all substantially factually intertwined, the Court shall decline to exercise

supplemental jurisdiction over any of these claims.

       By declining to exercise jurisdiction over these claims the Court does not seek to suggest

that these common law claims could not be decided by an appropriate motion before the local

court. Instead, the Court is only finding that it is most appropriate to decline supplemental

jurisdiction over Plaintiff’s remaining common law claims pursuant to §§ 1367(c)(3) and (4). See

Araya v. JPMorgan Chase Bank, N.A., 775 F.3d 409, 417 (D.C. Cir. 2014).

       The Court notes that Plaintiff will not be prejudiced by the Court’s dismissal of Plaintiff’s

common law claims at this stage of litigation because the statute of limitations for any claim over

which the Court has supplemental jurisdiction “shall be tolled while the claim is pending and for

a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28

U.S.C. § 1367(d).

                                       IV.     CONCLUSION

       For the foregoing reasons, the Court GRANTS summary judgment in Defendants’ favor as

to Plaintiff’s § 1983 claims against Defendants Boutaugh and Weiss (Count I). The Court declines

to exercise supplemental jurisdiction over Plaintiff’s common law claims and, therefore,

DISMISSES WITHOUT PREJUDICE Plaintiff’s assault and battery, false arrest/false

imprisonment, and intentional infliction of emotional distress claims. Accordingly, this case shall

be DISMISSED in its entirety.

       An appropriate Order accompanies this Memorandum Opinion.



                                                             ____/s/________________________
                                                             COLLEEN KOLLAR-KOTELLY
                                                             United States District Judge




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