                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


USMAN JALLOH,

               Plaintiff,

       v.                                            Civil Action No. 16-1613 (TJK)

ROBERT UNDERWOOD et al.,

               Defendants.


                            MEMORANDUM OPINION AND ORDER

       Plaintiff Usman Jalloh filed this lawsuit under 42 U.S.C. § 1983 and the Constitution’s

Fourth Amendment against Defendants Robert Underwood, Arthur Kimball, Sean Miller, and

Thomas Anderson. He alleges that Defendants—all police officers—violated his rights by

beating and then maliciously prosecuting him. To summarize their encounter: after a brief

discussion over whether Jalloh was properly parked, Officer Underwood alleges that Jalloh hit

him with his ice cream truck (which Jalloh denies). Officer Underwood and Sergeant Kimball

chased Jalloh from the District of Columbia into Maryland, and—by then joined by Officers

Miller and Anderson—stopped him and forcibly removed him from his truck. Jalloh alleges that

the officers then beat him and denied him proper medical care (which the officers deny). Jalloh

was later charged in the Superior Court of the District of Columbia with assaulting a police

officer while armed, fleeing, and reckless driving, but the case was eventually dismissed without

prejudice. Officer Underwood and Sergeant Kimball, employed by the District of Columbia, and

Officers Miller and Anderson, employed by Prince George’s County, Maryland, have filed two

separate motions for partial summary judgment. For the reasons below, both motions will be

granted in part and denied in part.
I.     Legal Standard

       “The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A fact is “material” if a dispute over it “might affect the outcome of the suit

under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). To survive summary judgment, a plaintiff must “go beyond the pleadings and

by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986) (internal quotation omitted).

II.     Analysis

       A.      Count I—Excessive Force under the Fourth Amendment

       Jalloh asserts Count I against all Defendants, but only Officer Anderson moves for

summary judgment. ECF No. 1 (“Compl.”) at 10. Jalloh’s excessive force claim against Officer

Anderson turns on whether he used objectively reasonable force under the circumstances. See

County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546–47 (2017). And even if he did not, to

overcome qualified immunity, Jalloh must still show that Officer Anderson’s conduct violated

clearly established law of which a reasonable person would have known. Pearson v. Callahan,

555 U.S. 223, 231 (2009). 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 v. Connor, 490 U.S.

386, 396 (1989). “The calculus of reasonableness must embody allowance for the fact that




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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.” Id. 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 v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir.

1993) (citing Martin v. Malhoyt, 830 F.2d 237, 253–54 (D.C. Cir. 1987)).

       The parties agree that while Officer Anderson helped remove Jalloh from his truck, he

did not participate in the beating that allegedly followed. See Compl. at 6–7; ECF No. 63 at 3–7.

Therefore, Officer Anderson argues that—even accepting Jalloh’s version of events—any force

he used in removing Jalloh from the truck was reasonable and, in any event, he is entitled to

qualified immunity. ECF No. 54-1 at 7–12.

       At the time Officer Anderson assisted in removing Jalloh from his truck, he knew that

Jalloh had been accused of assaulting a police officer, and he had just completed a high-speed

chase tracking him down. ECF No. 54-1 at 9–10; ECF No. 54, Ex. F at 16:40:04 (showing a

speed of 71 miles per hour). Once Jalloh’s truck stopped, Officer Anderson, along with two

other officers, briefly reached in to forcibly pull him out and secure him on the ground, which

was captured on video. See ECF No. 54, Ex. F at 16:40:31–38. Officer Anderson claims that he

unbuckled Jalloh’s seatbelt, while Jalloh asserts that he was not wearing a seatbelt and that the

force used to remove him and “fling” him to the ground was excessive because the police could

have allowed him to stand upright. See ECF No. 63 at 7. But even assuming Jalloh was not

wearing a seatbelt, under the circumstances, it was reasonable for Officer Anderson to assume




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that Jalloh might flee, resist, or try to injure the officers, and to take appropriate precautions. See

Graham, 490 U.S. at 396. The Court has viewed the video of Officer Anderson participating in

removing Jalloh from the truck and finds that Officer Anderson’s actions were reasonable under

the circumstances and did not violate the Fourth Amendment. See Rogala v. District of

Columbia, 161 F.3d 44, 54 (D.C. Cir. 1998) (finding that an officer acted reasonably in pulling

an arrestee from her car when she refused to get out); Jackson v. District of Columbia, 83

F. Supp. 3d 158, 169–171 (D.D.C. 2015). And because Officer Anderson did not violate Jalloh’s

rights by using excessive force, he is also entitled to qualified immunity on this count. See

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The Court will therefore grant summary

judgment for Officer Anderson on Count I.

       B.      Count II—Failure to Provide Medical Assistance under the Fourth
               Amendment

       Count II alleges that all Defendants failed to provide Jalloh medical assistance during his

beating. Compl. at 11–12. The parties’ representations on this count are, to be frank, a bit of a

mess. Officers Miller and Anderson (the “Maryland Defendants”) have moved for summary

judgment on this count. Officer Underwood and Sergeant Kimball (the “District Defendants”)

although at first joining the motion filed by the Maryland Defendants, later withdrew their

motion as to this count. ECF No. 70 at 4–5. Further, the District Defendants represent that the

parties have agreed that Jalloh is not pursuing this count against the Maryland Defendants, and

only against them. ECF No. 56-1 at 2. And although Jalloh has not directly taken issue with this

representation, he has opposed the Maryland Defendants’ motion as to this count. In short, it is




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unclear whether there is even a dispute related to Count II for the Court to decide, and in part for

that reason, the Court will deny the motion without prejudice.

       Before moving on, though, the Court notes that—even assuming Jalloh intends to pursue

Count II against the Maryland Defendants—their argument does not necessarily suggest that

summary judgment would be appropriate in their favor, even if it is correct in substance. They

rely solely on City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983) to argue

for summary judgment because Jalloh brought his claim under the Fourth Amendment, rather

than the Fifth Amendment. ECF No. 54-1 at 12. In response, Jalloh, citing a lack of prejudice to

the defendants, requests leave to amend his complaint if he cited the wrong amendment. ECF

No. 63 at 8–9. Indeed, in Revere, even though the plaintiff incorrectly brought his medical care

claim under the Eighth Amendment, the Court proceeded to analyze it under the Due Process

Clause of the Fourteenth Amendment, rather than dismiss it for that reason. 463 U.S. at 244–245

& n.6; cf. Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (“Federal pleading rules call for ‘a

short and plain statement of the claim showing that the pleader is entitled to relief’ . . . they do

not countenance dismissal of a complaint for imperfect statement of the legal theory supporting

the claim asserted.”).

       Moreover, whether Count II may be brought under the Fourth Amendment against either

the Maryland Defendants or the District Defendants is an unsettled question that the parties have

not briefed. After Revere, which said nothing about the Fourth Amendment, the Supreme Court

clarified that the Fourth Amendment, not the Fourteenth Amendment, governs an arrestee’s

excessive force claims. Graham, 490 U.S. at 388. Since then, the D.C. Circuit has not addressed

whether an arrestee’s claim that authorities failed to provide him medical assistance may be

grounded in the Fourth Amendment. Several courts in this District have analyzed such claims




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(against police officers employed by the District of Columbia, to whom the Fourteenth

Amendment does not apply) under the Due Process Clause of the Fifth Amendment, without

addressing whether the Fourth Amendment may apply. 1 See, e.g., Hargraves v. District of

Columbia, 143 F. Supp. 3d 68, 88–89 (D.D.C. 2015); Hall v. Lanier, 671 F. Supp. 2d 103, 106

(D.D.C. 2009); Linares v. Jones, 551 F. Supp. 2d 12, 16 (D.D.C. 2008). And courts of appeals

outside this jurisdiction appear to have split on whether the Fourth or Fourteenth Amendment

governs an arrestee’s claim that a police officer employed by a state failed to provide medical

assistance. 2 Notably, this “is not a purely academic question” because “the standards of liability

vary significantly according to which amendment applies,” which the Court need not recount

here. Lanman v. Hinson, 529 F.3d 673, 679–80 (6th Cir. 2008). 3

       For these reasons, the Court will deny the motion for summary judgment without

prejudice as to Count II. The Court will grant Jalloh leave to amend Count II, if he wishes, either



1
 Because the Fourteenth Amendment does not apply to the District of Columbia, the Fifth
Amendment is the appropriate basis for any due process claim against the District Defendants.
See Jordan v. District of Columbia, 113 F. Supp. 3d 278, 281 (D.D.C. 2015). Thus, the Court
notes, the Maryland Defendants appear to have the invoked the wrong amendment in their
motion, as least as Count II might apply to them. Revere analyzed a failure to provide medical
care claim under the Due Process Clause of the Fourteenth Amendment, not the Fifth
Amendment; the Fourteenth Amendment would presumably govern any claim grounded in due
process against them. 463 U.S. at 243–44; see Massey v. Ojaniit, 759 F.3d 343, 354 n.5 (4th Cir.
2014).
2
 See, e.g., McCowan v. Morales, 945 F.3d 1276, 1290 & n.11 (10th Cir. 2019) (Fourteenth
Amendment); Awnings v. Fullerton, 912 F.3d 1089, 1101–02 (8th Cir. 2019) (Fourteenth
Amendment); Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir. 2013) (Fourth Amendment);
Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006) (Fourth
Amendment).
3
  However, some courts have also applied Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470
(2015)—which removed the subjective component of the standard used to evaluate claims of
excessive force by pretrial detainees under the Fourteenth Amendment—to claims of failure to
provide medical assistance as well. See Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir.



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to clarify the legal basis for his claim or the Defendants against whom he asserts it. Then

Defendants may, if they wish, move again for summary judgment on Count II.

       C.      Count III—Failure to Intervene Under the Fourth Amendment

       Count III alleges a failure to intervene against all Defendants, who all move for summary

judgment. Courts in this District have found police officers in violation of the Fourth

Amendment on a theory of bystander liability if an officer “(1) knows that a fellow officer is

violating an individual’s constitutional right; (2) has a reasonable opportunity to prevent the

harm; and (3) chooses not to act.” Jackson v. District of Columbia, 327 F. Supp. 3d 52, 67

(D.D.C. 2018).

       The District Defendants represent that the parties have agreed that Jalloh is not pursuing

this count against them, and Jalloh does not contest this representation. ECF No. 56-1 at 2; ECF

No. 69. Therefore, summary judgment is warranted in their favor. In addition, the Maryland

Defendants have each moved to dismiss Count III.

       Officer Anderson argues that he is entitled to summary judgment because Jalloh admits

that Officer Anderson eventually intervened to stop the alleged beating. See ECF No. 54-1 at 13;

ECF No. 54-4 at 59:16–60:9. But this concession does not entitle him to summary judgment.

The video evidence establishes that Officer Anderson was present from the moment the officers

pulled Jalloh from the truck. ECF No. 54, Ex. F, at 16:40:30. According to Jalloh, Officer

Anderson watched while the other officers grabbed, beat, kicked, and punched him as he was




2018) (canvassing circuit split and joining the Second and Ninth Circuits in applying Kingsley to
medical assistance claims while acknowledging that the Fifth, Eighth, and Eleventh Circuits have
not); Banks v. Booth, No. 20-cv-849 (CKK), 2020 WL 1914896, at *5–6 (D.D.C. Apr. 19, 2020)
(applying Kingsley to medical assistance claims). If Kingsley applies to medical assistance
claims, then the liability standards under the Fourth and Fourteenth Amendments would be the
same, mooting the question of which amendment governs.


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lying on the ground, and only then intervened to prevent the beating from continuing. See ECF

No. 54-4 at 59:1–60:2; ECF No. 63 at 3–4. Thus, in Jalloh’s telling, Officer Anderson had an

earlier chance to prevent harm to him and did not do so. The Court must therefore deny Officer

Anderson’s motion for summary judgment as to Count III.

       Officer Miller fares better on this count. Jalloh testified that Officer Miller participated

in his beating, and he does not claim to be confused as to which officers beat him or argue in the

alternative that Officer Miller may have simply watched the beating. See ECF No. 63 at 3, 6, 9;

ECF No. 54-4 at 59:16–60. At bottom, Jalloh offers nothing to suggest that a theory of bystander

liability is appropriate as to Officer Miller. Therefore, the Court will grant Officer Miller’s

motion for summary judgment on Count III.

       D.      Count IV—Malicious Prosecution Under the Fourth Amendment

       Count IV alleges malicious prosecution against all Defendants, who all move for

summary judgment. Compl. at 13. “To support a § 1983 malicious prosecution claim . . . a

plaintiff must plead facts establishing (1) that the defendant instituted or continued a criminal

proceeding against the plaintiff; (2) that the proceedings terminated in favor of the plaintiff; and

(3) that a predicate constitutional violation occurred as a result of the proceedings.” Turpin v.

Ray, 319 F. Supp. 3d 191, 202 (D.D.C. 2018).

       The Maryland Defendants argue that they are entitled to summary judgment because they

had no role in pursuing charges against Jalloh, and Jalloh concedes this point. ECF No. 63 at 9.

Similarly, Sergeant Kimball represents that the parties have agreed that Jalloh is not pursuing

this count against him, and Jalloh does not contest this representation. ECF No. 56-1 at 2; ECF

No. 69. So to begin with, the Court will grant summary judgment on Count IV as to the

Maryland Defendants and Sergeant Kimball.




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       Officer Underwood argues that summary judgment in his favor is appropriate as well,

because (among other reasons) Jalloh has not shown that the prosecution against him terminated

favorably. A favorable termination need not be an acquittal after a trial, but it must “reflect on

the merits of the underlying action,” which “normally requires a showing of dismissal with

prejudice.” Thorp v. District of Columbia, 142 F. Supp. 3d 132, 145 (D.D.C. 2015). On the

other hand, where “dismissal is on technical grounds, for procedural reasons, it does not

constitute favorable termination.” Ronkin v. Vihn, 71 F. Supp. 3d 124, 138 n.14 (D.D.C. 2014)

(cleaned up). Here, the judge dismissed the criminal proceedings against Jalloh without

prejudice for want of prosecution, and—significantly for these purposes—over the government’s

objection. ECF No. 56-13 at 2. Such a dismissal is not a favorable termination that may support

a malicious prosecution claim. Jalloh points out that his trial was delayed on a few occasions,

and that his counsel filed a motion to dismiss because the government had failed to timely

comply with its discovery obligations. See ECF No. 69 at 7–8. But these circumstances do not

suggest that Jalloh was innocent or even that the government lacked the evidence to convict him.

Moreover, the only case cited by Jalloh, Clark v. District of Columbia, 241 F. Supp. 3d 24

(D.D.C. 2017), does little to help him. In that case, the Court denied a motion to dismiss for

failure to state a malicious prosecution claim where the plaintiff alleged that the government had

“acknowledged that the charges against him were ‘bogus’” upon moving to dismiss them. Id. at

35. But the government did not dismiss the charges here, nor is there any evidence that it made a

similar acknowledgment, and Jalloh cannot rely on mere allegations to avoid summary judgment.

Summary judgment is therefore warranted as to Officer Underwood on this count as well.




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III.   Conclusion and Order

       For all the above reasons, it is hereby ORDERED that Defendants Anderson and

Miller’s Motion for Summary Judgment, ECF No. 54, and Defendants Underwood and

Kimball’s Motion for Partial Summary Judgment, ECF No. 56, are each GRANTED IN PART

and DENIED IN PART. Summary judgment on Count I is GRANTED as to Defendant

Anderson. Summary judgment on Count II is DENIED WITHOUT PREJUDICE as to

Defendants Miller and Anderson. Summary judgment on Count III is GRANTED as to

Defendants Underwood, Kimball, and Miller, and DENIED as to Defendant Anderson.

Summary judgment on Count IV is GRANTED as to all Defendants. It is further ORDERED

that Plaintiff may move to amend Count II of the complaint by June 21, 2020, and Defendants

may then renew their motion for summary judgment as to Count II by July 21, 2020. If

Defendants do not renew their motion on Count II, the Court will promptly schedule a status

conference to discuss a trial schedule.

       SO ORDERED.



                                                           /s/ Timothy J. Kelly
                                                           TIMOTHY J. KELLY
                                                           United States District Judge

Date: May 22, 2020




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