                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

                                 )
TRESHAWN V. JONES                )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 11-2116(EGS)
          v.                     )
                                 )
UNITED STATES OF AMERICA, et al.,)
                                 )
               Defendants.       )
                                 )

                           MEMORANDUM OPINION

       This case is before the Court on defendants’ Motion to

Dismiss or, in the alternative, for Summary Judgment.     Upon

consideration of the motion, the opposition and reply thereto,

the entire record, and for the reasons explained below,

defendants’ motion to dismiss or, in the alternative, for

summary judgment is DENIED as to Counts I through IV of the

complaint.    Defendants’ motion for summary judgment is GRANTED

as to Count V of the complaint.

  I.     BACKGROUND

       In her Complaint, plaintiff brings several claims arising

from a January 28, 2009 traffic stop that occurred in the

District of Columbia.     Plaintiff alleges that she was traveling

near Southern Avenue and Galveston Street, S.E. with her minor

child in the vehicle.     Compl. ¶ 5.   Plaintiff states that as she

approached the intersection, she noticed that her sister’s
fiancé, Eric Herrion, was a passenger in a vehicle that had been

stopped by Officer Yeliz Kadiev, a law enforcement officer

employed by the United States Park Police.        Compl. ¶ 4, 5.

     Plaintiff stopped her vehicle near the intersection and

exited her car.    Compl. ¶ 6.   Plaintiff states that as she got

out of her car, Officer Kadiev “began yelling and screaming at

the plaintiff to get back her car.”       Id.   At the same time,

plaintiff’s daughter ran to Mr. Herrion, who was in the

passenger side of the vehicle that had been stopped.        Id.

Plaintiff states that Officer Kadiev “became even more irate

even as the plaintiff attempted to explain the situation to

her.”   Id.   Plaintiff alleges that as she attempted to lead her

daughter back to their car, Officer Kadiev “accosted the

plaintiff, who was pregnant at the time, by pushing, manhandling

and taking her to the ground.”     Id. ¶ 7.     Plaintiff further

states that she was placed in handcuffs, arrested, and taken to

jail.   Id.   Plaintiff was charged with disorderly conduct and

failure to obey.    Id. ¶ 8.   Following a bench trial in the

District of Columbia Superior Court, plaintiff was acquitted of

all charges on October 7, 2009.     Id.

     Plaintiff states that she filed a notice of claim with the

United States on January 28, 2011 by filing a Standard Form 95

with the National Park Service of the Department of the



                                   2
Interior.     Id. ¶ 9.   Plaintiff’s claim was denied on May 25,

2011.   Id.    Plaintiff then filed this suit on November 28, 2011.

  II.   STANDARD OF REVIEW

  A. Motion to Dismiss

     A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint.      Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).      A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.”      Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks and citations omitted).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.”      Id.

     When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint.      Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).      However, the Court

                                    3
must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.”   Id.   “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.”   Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

  B. Summary Judgment

     Summary judgment is appropriate when the moving party

demonstrates that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law.   Fed. R. Civ. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571

F.3d 62, 66 (D.C. Cir. 2009).   To establish a genuine issue of

material fact, the nonmoving party must demonstrate—through

affidavits or other competent evidence, Fed. R. Civ. P.

56(c)(1)—that the quantum of 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,

477 U.S. at 248).   While the Court views all facts in the light

most favorable to the nonmoving party in reaching that

determination, Keyes v. District of Columbia, 372 F.3d 434, 436

(D.C. Cir. 2004), the nonmoving party must nevertheless provide

more than “a scintilla of evidence” in support of its position,

Anderson, 477 U.S. at 252.   But “[i]f material facts are at

issue, or, though undisputed, are susceptible to divergent



                                 4
inferences, summary judgment is not available.”   Kuo–Yun Tao v.

Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

  III. DISCUSSION

  A. Evidence Properly Before the Court

     Rule 56 allows a party seeking or opposing summary judgment

to “object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in

evidence.”   Fed. R. Civ. P. 56(c)(2).   Plaintiff objects on the

basis of inadmissibility to several of the statements in

defendants’ Local Rule 56.1 statement of material facts not in

dispute.   Plaintiff does not explain the basis for her

objections, merely responding that “there is no admissible

evidence” in the record to support several statements.

Plaintiff’s argument focuses on two documents: the transcript

from her trial in Superior Court and the criminal incident

report of her arrest.

     At the summary judgment stage, a party is not required to

produce evidence in a form that is admissible, but the evidence

must be capable of being converted into admissible evidence at

trial.   Gleklen v. Democratic Cong. Campaign Comm., Inc., 199

F.3d 1365, 1369 (D.C. Cir. 2000); see also America v. Mills, 654

F. Supp. 2d 28, 35 (D.D.C. 2009) (finding that “if it is

possible to convert evidence into a form that would be

admissible at trial,” the court may consider it for summary

                                 5
judgment); see Richards v. Option One Mortgage, No. 08 Civ. 0007

(PLF), 2009 WL 2751831, at *1 n. 3 (D.D.C.2009) (explaining that

hearsay statements may be converted into admissible evidence if

a witness with personal knowledge can testify to them at trial).

Accordingly, to the extent that the evidence cited by defendants

can be converted into admissible evidence, it can be considered

on summary judgment.

     The nature of plaintiff’s Rule 56(c)(2) objection to the

admissibility of portions of the trial transcript is unclear.

To the extent that plaintiff is objecting to the authenticity of

the trial transcript, defendants have attached to their reply a

copy of the court reporter’s certification of the transcript,

see Defs.’ Reply, Ex. 8, and the Court finds that this is

sufficient to establish the authenticity of the trial transcript

for purposes of summary judgment.    See Fed. R. Evid. 901 (the

requirement of authentication is satisfied if the proponent

produces “evidence sufficient to support a finding that the item

is what the proponent claims it is”); Mills, 654 F. Supp. 2d at

34 (on summary judgment, the Court “need not find that the

evidence is necessarily what the proponent claims, but only is

that there is sufficient evidence so that the jury ultimately

might do so”).   If, instead, plaintiff seeks to object to the

use of a transcript at trial, rather than live evidence, that

argument also fails because such testimony can be “converted”

                                 6
into admissible live testimony if the witness in question

testifies at the trial.    See Richards, 2009 WL 2751831, at *1

n.3.    Plaintiff makes no argument that any of the Superior Court

trial witnesses would be unavailable for this trial.

Accordingly, the Court finds that the trial transcript is

properly cited as evidence in support of summary judgment.

       The Court also finds that the use of the police report is

also proper under Rule 56(c)(2).       Defendants have properly

established the authenticity of the police report in an

affidavit submitted with their Reply.       See Defs.’ Reply, Ex. 9.

To the extent that plaintiff is also challenging the police

record as hearsay, this argument also fails.       As an initial

matter, and although not argued by either party, the Court finds

that the report would likely be admissible as a business record

under Federal Rule of Evidence 803(6) or a public record under

Rule 803(8).    The Court also notes that while many of the

statements contained within the police report are “out-of-court”

statements, it does not appear that they are being used in this

context to “prove the truth of the matter asserted.”       Fed. R.

Evid. 801(c).    Rather, the statements are being offered by the

defendants to establish that certain statements were made and

their effect on the listener, Officer Kadiev.       Ali v. D.C.

Government, 810 F. Supp. 2d 78, 83 (D.D.C. 2011) (rejecting Rule

56(c)(2) objection to certain statements and documents that were

                                   7
offered on summary judgment for non-hearsay purposes such as the

effect on the listener).     Similarly, to the extent that any of

plaintiff’s own statements in the report are being offered for

their truth, such statements would likely also be admissible in

this case as admissions by party opponent.     See Fed. R. Evid.

801(d)(2).

        In view of the Court’s finding that plaintiff’s Rule

56(c)(2) objections fail, and because plaintiff failed to

otherwise object to certain statements by citing to record

evidence as required by Local Civil Rule 7(h)(1), the Court will

deem the following statements to have been admitted by the

plaintiff:

    •   The driver, identified as Bradley Cleveland, was also using
        a cell phone to send one or two text messages as he was
        stopped. Defs.’ SOF ¶ 7 (citing Tr. 27-29; Suppl. Crim.
        Incident Report, Block 7).

    •   Plaintiff, while engaged with the officer, encouraged and
        aided the seven-year-old passenger (Plaintiff’s daughter)
        to approach the passenger in the Mercury (Eric Herrion),
        where he hugged the child, putting his arm into the coat
        before the child departed. Defs.’ SOF ¶ 10 (citing Tr. 26-
        30, 37-39, 47-48, 58-60; Suppl. Crim. Incident Report,
        Block 7). 1



1
  Plaintiff partially disputes this statement, also citing to the
trial transcript, and alleges that “[i]n fact, Mr. Herrion
specifically testified that the plaintiff was handcuffed and on
the ground before the child ever got out of the car.” Pl.’s SOF
¶ 10. The Court finds that this does not create a material
issue of fact. Even if plaintiff had already been restrained,
she still could have been able to tell her daughter to go to Mr.
Herrion.
                                   8
  •   Plaintiff then attempted to usher the girl from the area
      and the girl was driven away from the scene by her other
      family members who had also arrived at the scene of the
      stop. Defs.’ SOF ¶ 11 (citing Compl. ¶¶ 6-7; Suppl. Crim.
      Incident Report, Block 7).

  •   Officer Kadiev detected the strong odor of marijuana as Mr.
      Herrion was removed from the Mercury and she located a
      small piece of green plant material consistent with
      marijuana on the passenger-side floor of the Mercury.
      Defs.’ SOF ¶ 12 (citing Suppl. Crim. Incident Report, Block
      7).

  •   Officer Kadiev also took the cell phone from Mr. Cleveland
      and observed that one of the text messages read “Southern
      Ave. I’m dirty.” Defs.’ SOF ¶ 13 (citing Suppl. Crim.
      Incident Report, Block 7).

  B. Counts I through IV

      Plaintiff brings four claims against the United States:

Count I (False Arrest/False Imprisonment); Count II (Intentional

Infliction of Emotional Distress); Count III (Assault &

Battery); and Count IV (Malicious Prosecution).    Defendants

argue that the claims against the United States are untimely

because they were not filed in this Court within the requisite

time period set forth by the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2671, et seq.   Defs.’ Mot. at 21.   The parties do

not dispute that the FTCA applies to this case.    See Pl.’s Opp.

at 15.

      The FTCA “requires that claims be presented to the agency

in question within two years of accrual, and filed in court

within six months after denial by the agency.”    Mittleman v.

United States, 104 F.3d 410, 413 (citing 28 U.S.C. § 2401(b)).

                                 9
Specifically, the six month limit runs from the “date of

mailing, by certified or registered mail, of the notice of final

denial of the claim by the agency to which it was presented.”

28 U.S.C. § 2401(b).   Defendants argue that because plaintiff

alleges that her claim was “denied by letter on May 25, 2011,”

plaintiff was required to file her complaint by November 25,

2011.   Because the complaint was not filed until November 28,

2011, defendants argue that plaintiff’s claims against the

United States are untimely.

     A defendant bears the burden of proving that an action is

untimely and, once the defendant satisfies that burden, the

burden shifts to the plaintiff to assert that equitable

principles justify avoidance of the defense.    Bowden v. United

States, 106 F.3d 433, 437 (D.C. Cir. 1997).    By citing to the

only date set forth in plaintiff’s complaint regarding the

letter, May 25, 2011, defendant has carried its burden of

establishing that plaintiff’s claim is untimely.    The Court

finds, therefore, that the burden shifts to the plaintiff to

establish that the complaint was timely filed.

     Plaintiff argues that she was permitted to file her

complaint on November 28, 2011 because the Clerk’s Office was

inaccessible on November 25, 2011, the day after Thanksgiving,

as a result of an administrative order by the Chief Judge

closing the United States District Court for the District of

                                10
Columbia, including the Clerk’s Office.   Defendants do not

dispute that an order was issued, but disagree as to its effect.

     Federal Rule of Civil Procedure 6(a)(3) provides that

     “Unless the court orders otherwise, if the clerk’s
     office is inaccessible:
     (A) on the last day for filing under Rule 6(a)(1),
     then the time for filing is extended to the first
     accessible day that is not a Saturday, Sunday, or
     legal holiday; . . . .

Fed. R. Civ. P. 6(a)(3).   Plaintiff argues that because the

Clerk’s Office was closed on November 25, 2011 as a result of

the Chief Judge’s order, the Clerk’s Office was “inaccessible”

and plaintiff was permitted to file her complaint on the

following Monday, November 28, 2011.

     Defendant argues that plaintiff misunderstands the meaning

of “inaccessible” in Rule 6(a)(3).   Defendant argues that even

if the Court was in recess, the Clerk’s Office has an after-

hours depository that was open to accept filings. 2   Defendant

argues that in this context, “inaccessible” refers to instances

of inclement weather and not simply the closing of the Court for

other reasons.   Defendant argues that the mere “closing” of the

Court, as opposed to, for example, a presidential executive



2
  The Court notes that defendants have provided no evidence in
support of the statement that the 24-hour drop box remained open
on November 25, 2011, stating only without any citation that
they have “verified” with the Clerk’s Office that “even if the
Court was in recess on the Friday after Thanksgiving, the Court
was open to accept filings in an after-hours depository.”
                                11
order designating November 25, 2011 as a “holiday” bars

plaintiff from arguing that her complaint was timely filed.

     In a case not cited by either party, this Circuit expressly

rejected the argument that the Clerk’s Office was not

“inaccessible” on a day that the office was closed because

filings could still theoretically have been made in the 24-hour

drop box.   See Tel. and Data Sys., Inc. v. Amcell F Atlantic

City, Inc., 20 F.3d 501, 501 (D.C. Cir. 1994). 3   In that case,

the Clerk’s Office and the Court had been closed due to

inclement weather.   The Circuit found that the argument

regarding the drop box to be “plainly inconsistent” with the

“considerations of liberality and leniency which find expression

in Rule 6(a).”   Id. (citing Union Nat. Bank v. Lamb, 337 U.S.

38, 41 (1949); accord Keyser v. Sacramento City Unified School

Dist., 265 F.3d 741, 747 (9th Cir. 2001) (holding that

regardless of whether the day after Thanksgiving was a legal

holiday, “the fact that the Clerk’s office was closed was

sufficient to make it ‘inaccessible’” under Federal Rule of

Appellate Procedure 26(a)(3), which is identical to Federal Rule

of Civil Procedure 26(a)(3)).   Similarly, the Court finds that

the fact that the Clerk’s Office was closed on November 25, 2011

pursuant to the Chief Judge’s order is sufficient to render it

3
  The Court is troubled by the parties’ failure to cite this
case, which is Circuit precedent that is binding upon this
Court.
                                12
“inaccessible” under Rule 6(a).    Accordingly, plaintiff’s

complaint was timely filed on November 28, 2011, the next day

that the Clerk’s Office was open.      Because defendants have

offered no other basis for dismissing Counts I through IV,

defendants’ motion to dismiss or, in the alternative, for

summary judgment, is DENIED. 4

    C. Count V

      In Count V of the Complaint, titled “Deprivation of Civil

Rights, 42 U.S.C. § 1983,” plaintiff alleges that Officer Kadiev

violated her Fourth Amendment rights to be free of unreasonable

seizure in the form of unlawful arrest and malicious

prosecution, 5   and by Officer Kadiev’s use of excessive force.

Compl. ¶¶ 23-26.




4
  Because the Court has found that plaintiff’s complaint was
timely filed on November 28, 2011, the Court does not reach
plaintiff’s alternative argument regarding the difference
between the date of the letter versus the actual date the letter
was mailed. Neither party argued that the letter was mailed
before May 25, 2011, rendering the date of mailing moot for
purposes of this motion.
5
  Neither party focuses on plaintiff’s related allegation of
malicious prosecution, also included in Count V. Because
plaintiff did not raise that issue in opposition to defendants’
motion for summary judgment on Count V, the Court will deem the
issue conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain
arguments raise by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.”)
(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1987)).
                                  13
  1. Section 1983 is Inapplicable

       As an initial matter, and as argued by the defendants, this

claim suffers from a fatal flaw.      Specifically, Section 1983

claims can only arise from actions taken under color of state

law.    See, e.g., Abramson v. Bennett, 707 F. Supp. 13, 16

(D.D.C. 1989), aff’d 809 F.2d 291 (D.C. Cir. 1989).      Because

Officer Kadiev was a member of the United States Park Police,

she is a federal employee, and plaintiff cannot state a claim

against Officer Kadiev under Section 1983.

       In her opposition, plaintiff concedes that Section 1983 is

“not applicable to this case.”    Pl.’s Opp. at 9.    Plaintiff

argues, however, that the Court is “not bound by plaintiff’s

characterization of the action” and that Officer Kadiev “can be

held responsible for her constitutional torts consistent with

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).”      Id.

Plaintiff argues that Count V states a claim for a violation of

the Fourth Amendment due to unlawful seizure and excessive

force, and that those claims are actionable under Bivens.

Because the Court is required to construe plaintiff’s claims in

the light most favorable to her, see Anderson, 477 U.S. at 255

and Kowal, 16 F.3d at 1276, the Court will construe Count V of

plaintiff’s complaint as arising under Bivens, rather than

Section 1983.



                                 14
  2. Qualified Immunity

     Officer Kadiev asserts the defense of qualified immunity.

Qualified immunity is “an immunity from suit rather than a mere

defense to liability.”    Hunter v. Bryant, 502 U.S. 224, 227

(1991).   Since the immunity exists to shield properly-acting

government officials from suit, it should be granted or denied

at the earliest possible stage in the litigation.    Id.   It is

therefore appropriate to rule on the issue of immunity on a

properly supported motion for summary judgment.    Butz v.

Economou, 438 U.S. 478, 508 (1978).    Because the Court finds

that there is no genuine dispute of material fact in this case,

summary judgment is the appropriate forum to resolve a qualified

immunity defense.   See Seigert v. Gilley, 500 U.S. 226, 231.

     Qualified immunity shields government officials “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.”    Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).    The doctrine of qualified

immunity “gives government officials breathing room to make

reasonable but mistaken judgments,” and “protects ‘all but the

plainly incompetent or those who knowingly violate the law.’”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)).    Defendants are

entitled to qualified immunity unless the plaintiffs alleged (1)

                                 15
a violation of a constitutional right that (2) was “clearly

established” at the time of violation.      Saucier v. Katz, 533

U.S. 194, 201 (2001), limited on other grounds by Pearson v.

Callahan, 555 U.S. 223 (2009).    In other words, “existing

precedent must have placed the statutory or constitutional

question beyond debate.”    Reichle v. Howards, 132 S. Ct. 2088,

2093 (2012).   Courts may “exercise their sound discretion in

deciding 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).   In determining whether the legal rules at

issue are clearly established, a court must look to “cases of

controlling authority in [its] jurisdiction.”      Wilson v. Layne,

526 U.S. 603, 617 (1999).   If there is no such controlling

authority, then the Court must determine whether there is “a

consensus of cases of persuasive authority.”      Id.   Once a

defendant asserts a defense of qualified immunity, the burden

then falls to the plaintiff to show that the official is not

entitled to qualified immunity.    Winder v. Erste, --- F. Supp.

2d ----, 2012 WL 5863494, at *5 (D.D.C. Nov. 19, 2012).

     Accordingly, the inquiry here is not whether Officer

Kadiev’s conduct violated plaintiff’s Fourth Amendment rights.

Rather, the dispositive question is whether, given the

circumstances presented, a reasonable police officer would have

                                  16
known that her conduct violated plaintiff’s clearly established

Fourth Amendment rights.

       a. Officer Kadiev Is Entitled to Qualified Immunity With
          Respect to the Restraining and Handcuffing of
          Plaintiff

     As discussed above, Officer Kadiev is entitled to qualified

immunity if a reasonable officer could believe that her actions

were lawful, in light of clearly established law and the

information the officer possessed.    As the Supreme Court has

explained, “[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.   Graham v. Connor, 490 U.S. 386, 397 (1989).

     Defendants argue that under clearly established law,

Officer Kadiev was entitled to restrain a person involving

herself in a potential crime scene.    Defs.’ Mot. at 20-21;

Defs.’ Reply at 7 (citing, e.g., Muehler v. Mena, 544 U.S. 93,

98-99 (2005); United States v. Jones, 973 F.2d 928, 931 (D.C.

Cir. 1992) vacated in part on other grounds 997 F.2d 1475 (D.C.

Cir. 1993)).   In Muehler, the Supreme Court held that the

detention of an occupant of a home during the execution of a

search warrant was justified to minimize the risk of harm to

officers and other occupants.   The Court held that the use of

handcuffs to detain the occupant to effectuate the detention was

reasonable because the governmental interests in safety

outweighed the intrusion on the occupant, and denied the

                                17
occupant’s Section 1983 claim.   Similarly, in Jones, this

Circuit held that the subject of an investigative Terry stop may

be ordered to the ground, handcuffed, and transferred to a

police car without the stop becoming an unlawful seizure or an

arrest, so long as the conduct was reasonable.   Where the

suspect had not obeyed police orders and had tried to flee, law

enforcement’s conduct in detaining him did not violate his

Fourth Amendment rights.   The other case law cited by defendants

also supports the right of law enforcement to use reasonable

force to detain a person in the appropriate circumstances.   See

United States v. Wilson, 36 F.3d 127, 1994 WL 408264 (D.C. Cir.

1994) (Terry stop and subsequent tackling of suspect was

warranted when he dropped his only piece of luggage in train

station and tried to flee after officers introduced themselves

to him); United States v. Vaughn, 22 F.3d 1185, 1994 WL 119002

(D.C. Cir. 1994) (when subject of Terry stop quickly thrust his

hand into pocket upon seeing police approaching, and did not

remove his hand upon request, it was reasonable for officer to

use force to remove his hand from his pocket); see also United

States v. Laing, 889, F.2d 281, 285 (D.C. Cir. 1989) (the “force

used to carry out the stop and search must be reasonable, but

may include using handcuffs or forcing the detainee to lie down

to prevent flight”).



                                 18
     Plaintiff makes no effort to distinguish the case law cited

by defendants.   In response to defendants’ arguments, plaintiff

simply argues that “force without reason is unreasonable” and

cites several cases that are not on point.   See Pl.’s Opp at 15

(citing Johnson v. District of Columbia, 528 F.3d 969, 976-77

(D.C. Cir. 2008); DeGraff v. District of Columbia, 120 F.3d 298,

302 (D.D.C. 1997)).   In Johnson, this Circuit held that an issue

of fact existed as to whether a man lying on his stomach was

“threatening or suggested escape” such that the use of force, in

the form of repeated kicking of the man in the stomach, was

warranted by officers.   528 F.3d at 977.   In that case, however,

the Circuit also stated that an officer’s act of violence

violates the Fourth Amendment if it furthers no governmental

interest such as apprehending a suspect or protecting an officer

or the public, and noted that the officers’ safety did not

appear to be in issue in that case.   Id. at 976.   In DeGraff,

the Court found that there was an issue of fact as to whether

the act of carrying a DUI suspect and handcuffing her to a

mailbox constituted excessive force because, unlike in other

cases, there was no evidence that the suspect was evasive,

attempting to escape, or jeopardizing the safety of the

officers.   120 F.3d at 302.

     Here, the undisputed facts show that Officer Kadiev was

dealing with a traffic stop that was spiraling rather quickly

                                19
out of control. 6   Plaintiff admits that she got out of her car

and approached a late-night traffic stop in progress.

Plaintiff’s daughter, at the direction of the plaintiff, ran to

the passenger in the car, Mr. Herrion, who put his arm in the

child’s coat.   Plaintiff then attempted to usher the child away

from the stop and the child was driven away from the scene by

other family members who had also arrived at the scene of the


6
  Plaintiff also attempts to create an issue of fact in response
to defendant’s arguments. Citing her trial testimony, plaintiff
argues that the testimony “refutes any contention” that Officer
Kadiev was justified in handcuffing plaintiff. The Court
disagrees. As an initial matter, plaintiff’s trial testimony
was not properly cited in her statement of facts and is not
properly considered on summary judgment. See Fed. R. Evid.
56(c)(1)(A); Local Civ. R. 7(h)(1) (requiring that a motion for
summary judgment be “accompanied by a separate concise statement
of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be
litigated”). Plaintiff also does not specifically explain how
her proffered trial testimony refutes any relevant facts. Upon
the Court’s review of the testimony, it appears that plaintiff
testified at her trial that she heard that her brother had been
pulled over and that she traveled to the location where they
were stopped and involved herself in the traffic stop. Pl.’s
Opp. at 12. Plaintiff testified that she tried to go back to
her car and told Officer Kadiev that she would wait at the
corner but was told to come back by Officer Kadiev, who then
handcuffed her and arrested her. Even if the testimony that
plaintiff tried to return to her car were properly considered by
the Court, it does not raise an issue of fact as to the
reasonableness of Officer Kadiev’s conduct. Assuming plaintiff
did attempt to return to her car, there was no guarantee that
she would stay there, in view of her prior conduct. In light of
all of the surrounding circumstances, including the conduct of
plaintiff, the actions of plaintiff’s daughter, and the growing
crowd of family members at the traffic stop, Officer Kadiev
could have believed it was reasonable to handcuff plaintiff at
that time for her safety and the safety of others.


                                 20
accident.    At that point, it seems that a small crowd of

plaintiff’s friends and family were at the scene of the

accident, with only one officer.      Officer Kadiev stated in her

report that she detected a strong odor of marijuana in Mr.

Cleveland’s car and found a small amount of marijuana in the

car.    She also stated that during the stop, Mr. Cleveland sent

text messages, one of which read “Southern Ave. I’m dirty.”

       The Court finds that the facts in this case establish that

a reasonable officer could have believed that her actions were

lawful and reasonable under the circumstances.     The facts are

distinguishable from Johnson and DeGraff, in which an officer’s

safety and the safety of the public was not at issue.     In the

circumstances described above, a reasonable officer could have

believed that her safety or the safety of others was at risk. 7

The Court finds that Officer Kadiev’s conduct therefore did not

violate a clearly established constitutional right in

restraining and handcuffing plaintiff, and that she is entitled

to qualified immunity.




7
  Plaintiff notes in her statement of facts that “Defendant
Kadiev was alone in a vehicle because she chose to stop the
vehicle which contained two men while she was alone.” Pl.’s SOF
¶ 6. Plaintiff’s point in making this statement is unclear but
to the extent that plaintiff suggests that Officer Kadiev cannot
rely on the defense of qualified immunity or that the stop was
otherwise improper because she “chose” to pull over two men at
night, the Court finds the argument particularly unpersuasive.
                                 21
       b. Officer Kadiev Is Entitled to Qualified Immunity With
          Respect to Plaintiff’s Arrest

     Plaintiff also argues that her arrest violated her Fourth

Amendment to be free of unlawful seizure and unlawful arrest.

The key question is whether, at the time of the detention, a

reasonable officer would have known that under clearly

established law there was no probable cause to arrest plaintiff.

“An officer retains qualified immunity from suit if he had an

objectively reasonable basis for believing that the facts and

circumstances surrounding the 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).   Thus, even if there was not sufficient probable

cause, a defendant will still be immune from suit if reasonable

officers in their positions “could have believed that probable

cause existed to arrest [plaintiff].”   Hunter v. Bryant, 502

U.S. 224, 228–29 (1991).   As the Supreme Court has made clear,

the officer’s actual state of mind is irrelevant to the

existence of probable cause.   Devenpeck v. Alford, 543 U.S. 146,

153 (2004).   Rather, the officer’s subjective reason for making

the arrest need not be the criminal offense as to which the

known facts provide probable cause.   Id.   “The fact that the

officer does not have the state of mind which is hypothecated by

the reasons which provide the legal justification for the


                                22
officer’s action does not invalidate the action taken as long as

the circumstances, viewed objectively, justify that action.”

Whren v. United States, 517 U.S. 806, 813 (1996) (citations

omitted).

     Defendants argue that a reasonable officer could have

believed that there existed probable cause to arrest plaintiff

for her possible involvement in a number of criminal offenses

under the D.C. Code.   Defs.’ Reply (citing D.C. Code ¶¶ 48-

904.01 (possession with intent to distribute a controlled

substance); 48-904.07 (enlistment of minors to distribute a

controlled substance); 22-405(b)(resisting, impeding or

interfering with a law enforcement officer engaged in the

performance of official duties); 21 U.S.C. § 841(a) (possession

with intent to distribute a controlled substance)).

     Plaintiff again relies on her trial testimony and argues

that the testimony “refutes any contention” that Officer Kadiev

had probable cause to arrest her.    As stated above, the Court is

under no obligation to consider the trial testimony proffered by

plaintiff, as it was not properly cited in her statement of

facts.   Again, however, the Court finds that the issue of

whether plaintiff attempted to return to her car on her own

accord does not create a genuine issue of material fact that

precludes summary judgment.   Rather, the undisputed facts

demonstrate that Officer Kadiev was in the midst of a quickly

                                23
unraveling situation involving suspected drug use and possession

and the possible involvement of a minor in those crimes.

Plaintiff’s actions in approaching the stop and involving her

daughter in the stop were sufficient to lead a reasonable

officer to believe that plaintiff had committed a crime,

possibly one involving a minor, and a reasonable officer could

have believed she had probable cause to arrest plaintiff.

Accordingly, the Court finds that Officer Kadiev is entitled to

qualified immunity as to Count V of the complaint. 8

    IV.   CONCLUSION

      For all of the foregoing reasons, defendants’ motion to

dismiss or, in the alternative, for summary judgment is DENIED

as to Counts I through IV of the complaint.   Defendants’ motion

for summary judgment is GRANTED as to Count V of the complaint.

An appropriate Order accompanies this Memorandum Opinion.



Signed:     Emmet G. Sullivan
            United States District Judge
            March 31, 2013




8
  Because the Court grants summary judgment as to Count V, the
Court does not reach defendants’ argument that Officer Kadiev
was not properly served.
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