Robinson v. Pezzat , 83 F. Supp. 3d 258 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARIETTA ROBINSON, )
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Plaintiff, )
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v. ) Civil Case No. 12-0302 (RJL)
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SARAH PEZZAT, et al., ) L ,
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Defendants. , ..
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(March 2015) [Dkt. #24]
Plaintiff Marietta Robinson (“plaintiff”) brought this action against the District of
Columbia and District ofColumbia Metropolitan Police Department (“MPD”) Officers
Sarah Pezzat, Christian Glynn, Richard McLeod, James Boteler, and Kelly Baker1
(collectively, “defendants”), seeking damages for violations of 42 U.S.C. § 1983 and
various common law torts, stemming from the killing of her dog during the execution of a
search warrant. See Complaint (“Compl.”) W 1, 3 [Dkt. #1]. Now before the Court is
defendants’ Motion for Summary Judgment. See Defs.’ Mot. for Summ. J. (“Defs.’
Mot”) [Dkt. #24]. Upon consideration of the parties” pleadings, relevant law, and the
entire record in this case, the Court GRANTS defendants” Motion for Summary
' Plaintiff also named MPD officers Adrian Ledesma, Adam Johnston, Kimberly Selby, and
Vincent Hopkins as defendants in this action. See Compl. On March 7, 2014, however, plaintiff
stipulated to their dismissal—with prejudice—from this action. See Praecipe of Dismissal [Dkt.
#21].
Judgment as to Counts I, II, and III ofthe Complaint and DISMISSES the remaining
Counts IV, V, VI, VII, and VIII of the Complaint WITHOUT PREJUDICE.
BACKGROUND
On June 3, 2010, nearly two weeks prior to the events at issue, MPD officers
arrested plaintiff s grandson, Kevin Jackson (“Jackson”), for possession of marijuana
with intent to distribute. Defs.’ Statement of Material Facts as to Which There is No
Genuine Dispute (“Defs.’ SOMF”) W 8, 12 [Dkt. #24-2]. Jackson informed the arresting
officers that he resided with plaintiff at 1338 Fifth Street, NW. in Washington, DC.
Defs.’ SOMF 1] 14. Shortly thereafter, on June 8, 2010, the DC. Superior Court issued a
search warrant, authorizing the MPD to search plaintiff’s home for drug paraphernalia. 2
Defs.’ SOMF 11 18; see Defs.’ Mot. Ex. 5(b) [Dkt. #24-8]. Prior to executing the search
warrant, MPD Officers Baker and Boteler surveilled plaintiff’s residence but did not see
any evidence that plaintiff owned a dog. Defs.’ SOMF W 58—59.
When the defendant officers arrived at plaintiff’s residence on June 15, 2010 to
execute the search warrant, plaintiff answered the door with her thirteen-year-old pit bull
mix#Wrinkles—by her side. Compl. 1W 3, 5; see Defs.’ SOMF 1i 1. Wrinkles, was, by
all accounts, a dog with aggressive tendencies. Veterinary reports state that Wrinkles
frequently barked and growled at veterinary staff and had to be muzzled during routine
examinations. Defs.’ SOMF W 4-5. This behavior was not confined to veterinary visits.
At home, Wrinkles often barked and growled at strangers entering plaintiff‘s house,
2 The parties do not dispute the validity of the search warrant. P1.’s Mem. of P. & A. in Opp’n to
Defs.’ Mot. for Summ. J. (“Pl’s Opp’n), at 13 [Dkt. #26-1].
2
constituted such a threat, the balance tips in favor of reasonableness. See id; Hatch v.
Grosinger, 01civl906(RHK/AJB), 2003 WL 1610778, at *5 (D. Minn. Mar. 3, 2003)
(finding a seizure reasonable where the dog was an immediate danger).
There is no genuine dispute that Wrinkles posed an imminent threat. Plaintiff
argues that her uncorroborated version of events creates a genuine issue of material fact
precluding summary judgment. See Pl.’s Opp’n, at 8. I disagree. To withstand summary
judgment, a plaintiff must advance more than a scintilla of doubt as to her claims. Cobbs
v. Bluemercury,1nc., 746 F. Supp. 2d 137, 141 (D.D.C. 2010). Unsubstantiated
allegations of harm fall short of this standard, making dismissal imminently more likely
where, as here, a plaintiff 5 claims are contradicted, and overborn, by a record of credible
evidence. See Arrington v. United States, 473 F.3d 329, 342—43 (DC. Cir. 2006)
(“[S]ummary judgment “is most likely when a plaintiff’s claim is supported solely by the
plaintiff’s own self-serving testimony, unsupported by corroborating evidence, and
9”
undermined . . . by other credible evidence. (quoting Johnson v. Wash. Metro. Area
TransitAuth., 883 F.2d 125, 128 (DC. Cir. 1989))). Indeed, several undisputed facts
corroborate defendants’ account and support an inference that Officers Pezzat, Glynn,
and McLeod shot Wrinkles because the dog was a clear and present threat. Neither party
disagrees that Wrinkles had a history of aggression. See Pl.’s SOMF W 2-6. Nor is there
any dispute that when the MPD officers arrived at plaintiff’s residence on the night of
June 15, 2010, Wrinkles barked and growled at the search team, prompting plaintiff to
place the dog in the downstairs bathroom. See Pl.’s SOMF W 20, 25-27, 47. The parties
agree that Wrinkles bit, shook, and attempted to bodily drag Officer Pezzat into the
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bathroom, leaving bite marks in her steel—toed boots and injuring her foot. See Pl.’s
SOMF W 32(b)—33, 41, 43, 45. Both parties agree, moreover, that even after being shot,
the dog charged two other police officers stationed on the staircase, prompting them to
take cover behind a protective shield. See Pl.’s SOMF 11 38. Although, in retrospect,
nonlethal force may have been preferable, there is no assurance that it would have
succeeded. Given Wrinkles’ threatening behavior, the government’s interest in
safeguarding the lives of its officers, and the pressure of split-second decision-making, I
find the seizure eminently reasonable under the circumstances.7 See Hatch, 2003 WL
1610778, at *5 (noting that when a dog poses an imminent threat, the “balance of
interests tips away” from the plaintiff). Because Wrinkles” shooting was reasonable and
did not violate plaintiff’s Fourth Amendment rights, the Court need not determine
whether plaintiff’s right was clearly established, see Saucier, 533 US. at 201, and as
such, finds that Officers Pezzat, Glynn, and McLeod are entitled to qualified immunity
from the seizure of plaintiff’s dog.
The second seizure underpinning plaintiff’s Fourth Amendment claim—the
alleged damage to her personal property during the search—was likewise constitutional.
Plaintiff alleges that the defendant officers’ search of her premises was unreasonably
destructive, owing to several “bullet impacts” from the shooting and the “damage to
7 The cases plaintiff cites in her opposition are inapposite. See P1.’s Opp’n at 7—9. In each case,
unlike in the present matter, there was a genuine dispute as to whether the dog posed an
imminent threat. See, e.g., Thurston v. City ofN. Las Vegas Police Dep ’t, 552 Fed. App’x 640,
642 (9th Cir. 2014) (declining to grant summary judgment for defendants where there was a
genuine issue of material fact as to whether the dogs attacked the officers); Viilo, 547 F.3d at 710
(declining to enter summary judgment for defendants where several witnesses on both sides
“vigorously contested” whether the dog posed an imminent threat).
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[plaintiff‘s] items” from Wrinkles’ blood. See Compl. 11 107. Officers conducting
searches must “avoid unnecessary damage to the premises.” Brown v. District of
Columbia, 638 F. Supp. 1479, 1488 (D.D.C. 1986). Property damage is not, however, a
per se violation of the Fourth Amendment, and police officers may damage property
while executing a valid search warrant ifit is reasonable to do so. See Dalia v. United
States, 441 US. 238, 258 (1979) (“[O]fficers executing search warrants on occasion must
damage property in order to perform their duty.”). This rings especially true in searches
for illegal substances, as contraband is rarely strewn in plain sight. Several circuits have
held that property damage is reasonable, and often necessary, to find concealed drugs.
See, e.g., United States v. Whisnant, 391 Fed. App’x 426, 429-30 (6th Cir. 2010) (holding
that officers could reasonably search interior walls for contraband); United States v.
Becker, 929 F.2d 442, 446—447 (9th Cir. 1991) (holding that officers could reasonably
destroy a concrete slab in their search for contraband). Reasonableness is, of course, a
subjective inquiry, and hinges on “the particular facts of the case,” including the breadth
ofthe search warrant, Tarpley v. Greene, 684 F.2d 1, 9 (DC. Cir. 1982), “the scope of
the particular intrusion, the manner in which it is conducted, the justification for initiating
it, and the place in which it is conducted,” Bell v. Wolfisn, 441 US. 520, 559 (1979).
The damage here was reasonable under the circumstances. As discussed
previously, the immediate damage to plaintiff‘s clothing, furniture, and walls from
Wrinkles’ shooting was incident to a reasonable seizure and, therefore, is within the
realm of constitutionality. 1 find, moreover, that any subsequent damage to plaintiff’ 5
personal items was the product of a reasonable search. A broadly—worded warrant
13
authorized defendants to search plaintiff” s residence for concealed drugs. See Defs.’
Mot. Ex. 5(b). Acting under the auspices of this warrant, the defendant officers had
every reason, indeed, every right, to search in closets, beneath sofas, and behind picture
frames for concealed drugs. See United States v. Ross, 456 U.S. 798, 821 (1982) (“[A]
warrant that authorizes an officer to search a home for [contraband] also provides
authority to open closets, chests, drawers, and containers in which the [contraband] may
be found”). That Wrinkles’ blood made its way onto plaintiff’s fixtures as the officers
turned on light switches, lifted furniture, and removed wall hangings is neither
remarkable nor unduly destructive. Courts have allowed far greater incursions and I find
no evidence that this search exceeds the bounds of reasonableness. Accordingly, because
the damage resulting from the defendant officers’ search was constitutional, I find that
they are entitled to qualified immunity for any damage incurred during the search.
II. Section 1983 Claim Against the District of Columbia (Count III)
Regardless of the nature of the underlying allegations, the District of Columbia
can be liable under 42 U.S.C. § 1983 for any constitutional deprivations suffered by
plaintiff if “there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation.” City ofCanton v. Harris, 489 U.S. 378, 385 (1989);
see Monell v. Dep’t OfSoc. Servs., 436 U.S. 658, 692 (1978) (section 1983 “imposes
liability on a government that, under color of some official policy, ‘causes’ an employee
to violate another's constitutional rights”). A direct causal link can be shown in two
ways. Either a municipal body may cause a constitutional tort through the adoption and
promulgation of a formal policy, Monet], 436 U.S. at 690, or, in the absence of a formal
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policy, through a “custom” that is so pervasive “as to have the force oflaw,” Board oftlze
County Commissioners ofBryarz County, Oklahoma v. Brown, 520 US. 397, 404 (1997).
In all events, the municipality’s liability can be predicated “only [upon] acts for which the
municipality itselfis actually responsible.” City ofSt. Louis v. Praprotnik, 485 US. 112,
123 (1978).
A municipality’s failure to train its employees can suffice as a “custom” or
“policy” under 42 U.S.C. § 1983 ifthat failure evidences “‘deliberate indifference’
towards the constitutional rights of persons in its domain.” Daskalea v. District of
Columbia, 227 F.3d 433, 441 (DC. Cir. 2000) (quoting City ofCanton, 489 US. at 388-
89 & n.7). Such indifference attaches only when “the need for more or different training
is so obvious, and the inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to have been deliberately
indifferent to the need.” City ofCanton, 489 US. at 390 (emphasis added). This is a
difficult standard to meet, and municipal liability “is at its most tenuous where a claim
turns on a failure to train.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
Plaintiff here has not sustained her burden. She can point to no formal policy
sanctioning the indiscriminate killing of household pets, let alone one that catalyzed the
shooting here. Plaintiff 5 claim appears to rest instead on the exclusion of animal
shootings from the MPD’s definition of“serious use of force.” See Comp]. 1] 1 15. Even
if this definition evidences some indifference to the lives of animals—and it plainly does
not—it is overridden by a clear policy restricting the use of deadly force to self-defense.
See Defs.’ Mot. Ex. 14, at 000125 [Dkt. #24-17]. Plaintiff’s reliance on a purported
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pattern of domestic animal shootings to establish a “custom” of municipal misconduct
does not salvage her claim. See Compl. 11 1 13. A record of prior animal shootings
neither amounts to a “pattern” of civil wrongdoing, nor portends future transgressions.
To the contrary, even if these incidents placed the District on notice of domestic animal
shootings. plaintiff has tendered no evidence suggesting that the majority of these
shootings were unconstitutional. As such, there is no evidence that the District was
“faced with actual or constructive knowledge that its agents [would] probably violate
constitutional rights.” See Dormu v. District ofColumbia, 795 F. Supp. 2d 7, 26 (2011).
Straining mightily to make her case, plaintiff further alleges that the District,
armed with knowledge of domestic animal shootings, adopted a “policy of inaction” by
failing to properly train its officers. See Pl.’s Opp’n, at 23. Even if plaintiff had
shown—and she plainly has not—that notice of past animal shootings created an
atmosphere of “deliberate indifference,” her claim fails because plaintiff has not
articulated how improved training would have prevented Wrinkles’ death. Plaintiff
argues that had the municipality instituted a “standardized practice” for securing dogs and
equipped its officers with “nonlethal means of safely subduing dogs,” Wrinkles may not
have been killed. See Pl.’s Opp’n, at 18. This assumes too much. Claims that “better or
more training” could have averted harm can be made “about almost any encounter
resulting in injury” and are a flimsy basis for liability. City ofCanton, 489 US. at 391.
It is impossible to say with any degree of certainty that additional training would have
elicited a different response. Wrinkles was killed because she threatened the safety of the
MPD officers conducting a legal search. Even if the city implemented “standardized”
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procedures and the defendant officers had received additional training, there is no
assurance that these procedures would have averted the shooting. Accordingly, I find no
evidence that the municipality ratified an unconstitutional policy and hold that defendants
are entitled to summary judgment on this count.
111. Supplemental Jurisdiction Over Plaintiff’s Common Law Claims
(Counts IV-VIII)
Each of plaintiff’s remaining claims—assault (Count IV), intentional infliction of
emotional distress (Count V), negligent infliction of emotional distress (Count VI),
negligence (Count VII), and conversion (Count VIII)—asserts violations of District of
Columbia law. When the remaining issues arise purely under state law the Court may—
and in this instance, does—~decline to exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(a). Federal district courts are given supplemental, or pendant, jurisdiction over
state law claims that “form part of the same case or controversy” as the federal claims
over which they have original jurisdiction. 28 U.S.C. § 1367(a). Supplemental
jurisdiction is not obligatory and a federal court may “decline to exercise” such
jurisdiction ifit has “dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § l367(c)(3).
When deciding whether to exercise supplemental jurisdiction, federal courts
consider various factors, including “judicial economy, convenience, fairness, and
comity.” Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (DC. Cir. 2005). Nonetheless, “in
the usual case in which all federal—law claims are eliminated before trial, the balance of
factors to be considered under the pendant jurisdiction doctrine . . . will point toward
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declining to exercise jurisdiction over the remaining state-law claims.” Carnegie—Mellon
Univ. v. Cohill, 484 US. 343, 350 n.7 (1988); see also Edmondson & Gallagher v. Alban
Towers Tenants Ass ’n, 48 F.3d 1260, 1267 (DC. Cir. 1995) (finding the discretion set out
in Carnegie-Mellon University “unaffected by the subsequent enactment of 28 U.S.C. §
1367(d), in the Judicial Improvements Act of 1990”).
Here, the equities militate in favor of dismissal. Plaintiff alleges numerous
common law tort claims, at least one of which involves unsettled questions of timeliness.
See Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J., at 30-32 [Dkt. #24-1].
The District of Columbia Superior Court is eminently more qualified than a federal court
to navigate the contours of the local statutory and common law questions raised by
plaintiff s complaint. The process, moreover, of deciding plaintiff‘s myriad state law
claims could fairly be characterized as an undertaking to resolve “complex issue[s] of
State law” more appropriately left to the local court. See 28 U.S.C. § 1367(c)(1). The
remaining factors—judicial economy and convenience—provide no serious
counterweight and, indeed, favor judicial restraint. There has been no trial, and the Court
has had no prior occasion to consider plaintiffs claims in any great detail. Furthermore,
under the circumstances, where the locus of the alleged harm is in the District of
Columbia, there “seems little difference in convenience for the parties whether they
litigate in DC. or federal court.” See Edmondson & Gallagher, 48 F.3d at 1267.
The Court can conceive of no unfairness to the litigants from its decision to
decline supplemental jurisdiction, as 28 U.S.C. § 1367(d) tolls the statute of limitations
during the pendency of the federal case and for at least 30 days thereafter. See Shekoyan,
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409 F.3d at 419 (affirming the district court’s finding that because ofthis tolling,
dismissal of pendent state claims “will not adversely impact plaintiffs ability to pursue
his District of Columbia claims in the local court system”). To coin our Circuit’s turn of
phrase, the Court has “an obligation to exercise its discretion to remand the case to the
District of Columbia courts once the federal question, like Elvis, ha[s] left the building.”
See Araya v. JPMorgan Chase Bank, 775 F.3d 409, 418-19 (DC. Cir. 2014). The Court
accordingly cedes supplemental jurisdiction and dismisses plaintiff’s nonfederal claims
without prejudice. Plaintiff may bring her remaining claims, if not barred, in the
appropriate local court.
CONCLUSION
Accordingly, for all the foregoing reasons, the Court will GRANT defendant’s
motion for summary judgment [Dkt. #24] on Counts I, II, and III of the Complaint. The
Court declines to exercise supplemental jurisdiction over the Counts IV, V, VI, VII, and
VIII of the Complaint and DISMISSES those counts WITHOUT PREJUDICE. An
Order consistent with this decision accompanies this Memorandum Opinion.
A
RICHA ON
United States District Judge
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prompting plaintiff to sequester Wrinkles in the first floor bathroom when the dog
appeared agitated. Defs.’ SOMF W 6—7; Def‘s Mot. Ex. 1, at 17:3-19 [Dkt. #24-3].
Wrinkles heralded the MPD officers’ arrival on June 15, 2010 in much the same way.
Indeed, when the officers arrived on plaintiff’s doorstep and announced their intention to
search her residence, Wrinkles began growling and barking loudly. Defs.’ SOMF W 19—
20, 24. Several MPD officers characterized Wrinkles’ behavior as “aggressive,” and at
least one officer testified that Wrinkles “snarled” at the search team. See Defs.’ Mot. Ex.
8, at 112:10-14 [Dkt. #24-11]; Defs.’ Mot. Ex. 9, at 18:4-11 [Dkt. #24-12]. After
obtaining the officers’ permission, plaintiff secured Wrinkles in the first floor bathroom
and the officers entered the house. See Compl. W 6, 8; Defs.’ SOMF W 25-26. Officer
Pezzat, a woman weighing less than one-hundred pounds, opened the bathroom door,
apparently unaware that Wrinkles had been placed therein. Defs.’ SOMF W 30—3 1.
Thereafter, the parties’ recollections diverge. Plaintiff testified that immediately
after opening the bathroom door, Officer Pezzat fired a shot at Wrinkles, who was lying
prone on the bathroom floor. See Pl.’s Statement of Genuine Issues and Resp. to Defs.’
Statement of Undisputed Facts (“PL’s SOMF”) fl 32(b) [Dkt. #26—2]. According to
plaintiff, it was only after being shot that Wrinkles sprang to action and bit Officer Pezzat
on the foot. See “Pl.’s SOMF” 1i 32(b). The MPD officers present at the scene, however,
recall a different sequence of events. According to several officers, immediately upon
opening the bathroom door, Officer Pezzat was besieged by Wrinkles, who bit her on the
foot, shook vigorously, and began dragging her toward the bathroom. See Defs.’ SOMF
ii 32; Defs.’ Mot. Ex. 10, at 59:16—19 [Dkt. #24-13]. The bite pierced Officer Pezzat’s
3
steel-toed boots and punctured her foot. See Defs.’ SOMF 1M] 40-41. Officer Pezzat
knew that she “had to make a decision right then and there.” Defs.’ Mot. Ex. 7, at 85:15-
16 [Dkt. #24-10]. She testified that “[t]he thought in my mind at the time was that
[pepper spray] wasn’t going to be effective. . . . I was starting to feel pain from the bite,
and I knew I had to do something quick and decisive.” Defs.’ Mot. Ex. 7, at 85:13-19.
Motivated by fears that if she fell, Wrinkles could seize her throat or injure a vital organ,
Officer Pezzat opted to discharge her weapon. See Defs.’ SOMF ‘1] 44; Defs.’ Mot. EX.
10, at 60: 14-18. Officer Glynn, who was standing immediately behind Officer Pezzat
and witnessed the events unfold, simultaneously drew, and discharged, his weapon.
Defs.’ Mot. Ex. 10, at 58:1-6321. This version of events is corroborated by several
eyewitness accounts. Officer McLeod testified:
“Once we walked into [plaintiff‘s residence], I heard behind
me snarling again. I turned around to see that the dog had
bitten Officer Pezzat and was holding on to her foot. . . . I saw
the dog grabbing ahold of her foot and shaking his head and
pulling her. A brief struggle, then I heard two shots, then the
dog charged towards myself. . . .”
Defs.’ Mot. Ex. 4, at 31:19-32:5 [Dkt. #24-6]. Officer Johnston likewise testified: “a dog
came growling, bit Officer Pezzat in the foot, was pulling her down, biting her foot, her
left foot . . . . That’s when Officer Pezzat and Officer Glynn fired their service
weapon[s].” 3 Defs.’ Mot. Ex. 9, at 1922-8 [Dkt. #24-12]. Neither party disputes that
3 Similarly, Officer Boteler testified: “I saw the dog on Pezzat’s foot. I can’t say I saw her shoot
the dog. I saw the dog on her foot and I saw her shaking her foot, and then I heard a gunshot and
then I heard another gunshot.” Defs.’ Mot. EX. 8, at 99:8—11 [Dkt. #24-11]. Officer Glynn
confirmed that sequence of events: “As [Officer Pezzat] attempted to free her foot, and failing to
4
Officer Pezzat sought immediate medical treatment for her injuries. See Pl.’s SOMF 11
45.
Both parties agree, moreover, that after Officers Glynn and Pezzat fired their
weapons, Wrinkles ran out of the bathroom toward Officer McLeod. See Defs.’ SOMF 1]
34; see Defs.’ Mot. Ex. 11, at 104:21-22 [Dkt. # 24-14] (“After the shots the dog started
coming toward [Officer Hopkins], Officer McLeod and Officer Ledesma”). Upon seeing
Wrinkles emerge, Officer McLeod discharged his weapon and continued to fire until
Wrinkles changed course and headed toward the staircase, where Officers Ledesma and
Hopkins were standing. Defs.’ SOMF W 35-36; see Defs.’ Mot. Ex. 4, at 43:18-21,
44:17-22. Wrinkles’ trajectory forced Officers Ledesma and Hopkins to back up the
stairs in search of safety. Defs.’ SOMF ‘ll 38. According to Officer Ledesma, because
“the dog kept coming towards us and [tried] to get to us,” she was forced to deploy a
protective shield. Def.’s Mot. Ex. 12, at 25:7—13 [Dkt. #24-15]. The dog continued its
assent for another few steps before succumbing to its injuries and falling to the base of
the stairs. Defs.’ Mot. Ex. 1, at 48:19—22. Plaintiff alleges that the entire incident left
approximately twelve bullet holes in her residence. Compl. ll 63.
After Wrinkles died, Sergeant Boteler, another of the officers present at the scene,
used plaintiff’s sheets to cover the deceased animal. Defs.’ SOMF fl 51; see Compl. H 15.
The officers, meanwhile, continued to search plaintiff’s residence for the contraband
enumerated in the search warrant. Defs.’ SOMF ll 53. Plaintiff alleges that during the
do so and the dog pulling her, both she and l unholstered our weapons and fired, either her
immediately before me or almost simultaneously.” Defs.’ Mot. Ex. 10, at 60:21-61 :2.
5
search, the officers wiped their bloody hands on her sofa, “rinsed off blood from the
shooting in Plaintiff’ s drinking water fountain,” and destroyed photographs, artwork, and
clothing. See Compl. W 14-16, 155.
Plaintiff commenced this action on February 24, 2012, alleging violations of her
Constitutional rights under 42 U.S.C. § 1983 (Counts 1-111) and a kaleidoscope of
common law torts, including assault (Count IV), intentional infliction of emotional
distress (Count V), negligent infliction of emotional distress (Count VI), negligence
(Count VII), and conversion (Count VIII). See generally Compl. Defendants moved for
summaryjudgment on June 9, 2014, Defs.’ Mot., and plaintiff timely opposed, see Pl.’s
Opp’n.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper where
the pleadings, stipulations, affidavits, and admissions in a case show that there is no
genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
US. 317, 322 (1986). The court must accept as true the evidence of, and draw “all
justifiable inferences” in favor of, the party opposing summaryjudgment. Anderson v.
Liberty Lobby, Inc, 477 US. 242, 255 (1986). The nonmoving party may not rest upon
the laurels of its pleadings. Rather, it is incumbent on the nonmoving party to “set forth
specific facts showing that there is a genuine issue for trial.” [d at 256. A genuine issue
exists when the evidence is more than “merely colorable,” id. at 249, such that a
reasonable jury could return a verdict for the nonmoving party,” id. at 248. Summary
judgment is thus proper “against a party who fails to make a showing sufficient to
6
establish the existence of an element essential to that party’s case.” Celotex, 477 US. at
322.
ANALYSIS
1. Section 1983 Claims Against Defendant Officers (Counts I and II) 4
42 U.S.C. § 1983 provides a right of action to claimants alleging that a person
acting under color of District of Columbia law deprived, or caused them to be deprived,
ofa Constitutional right. City ofOkZa. City v. Tattle, 471 US. 808, 829 (1985). Plaintiff
here alleges that the defendant MPD officers committed two such Constitutional
violations—specifically, violations of the Fourth and Fifth Amendments—stemming
from the shooting of her dog and the destruction of her personal property. Unfortunately
for plaintiff, I find these claims unavailing.
A. Fifth Amendment Claims (Counts I and II)
Plaintiff first claims that defendants’ search of her house and the seizure of her
dog violated Fifth Amendment substantive due process. See Compl. W 78-1 11. These
claims fail as a matter of law. It is well—settled that “[w]here a particular Amendment
‘provides an explicit textual source of constitutional protection’ against a particular sort
4 Plaintiff brings Counts I and 11 against the defendant MPD officers in their individual and
official capacities. Claims against officers in their official capacities are “another way of
pleading an action against an entity of which its officer is an agent” and are properly pled as
claims against the “government entity itself.” Kentucky v. Graham, 473 US. 159, 165-66 (1985)
(quoting Monet] v. New York City Dep ’t ofSoc. Servs., 436 US. 658, 690 n.55 (1978)). “Based
upon the understanding that it is duplicative to name both a government entity and the entity’s
employees in their official capacity[ies], courts have routinely dismissed corresponding claims
against individuals named in their official capacity as redundant and an inefficient use of judicial
resources.” Robinson v. District ofColumbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005) (internal
quotation marks omitted). 1 will do the same and consider only the claims against defendants in
their individual capacities.
of government behavior, ‘that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing [a party’s] claims.” Albright v.
Oliver. 510 US. 266. 273 (1994) (quoting Graham v. Connor, 490 US. 386, 395 (1989)).
The Fourth Amendment expressly governs the genus of pretrial deprivations alleged in
this action—the seizure of plaintiff’ 3 personal property. See Elkins v. District of
Columbia, 690 F.3d 554, 562 (DC. Cir. 2012) (holding that plaintiff could not “use the
search of her home or the seizure of documents as grounds for a claim under the Fifth
Amendment” because “[t]he remedy for any harm to [plaintiff] from the search of her
home is governed by the Fourth Amendment”); see also Plumhoffv. Rickard, 134 S. Ct.
2012, 2020 (2014) (“A claim that law—enforcement officers used excessive force to effect
a seizure is governed by the Fourth Amendment’s ‘reasonableness’ standard”); Graham,
490 US. at 395 (holding that claims of excessive force during a “‘seizure’ ofa free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach”). Accordingly, any
constitutional harm to plaintiff arising from the search and seizure of her property is
governed exclusively by the Fourth Amendment, to which I now turn.5
5 Even assuming, arguena’o, that plaintiff could articulate an independent claim under the Fifth
Amendment, that claim fails because the defendants’ actions cannot “properly be characterized
as arbitrary, or conscience-shocking, in a constitutional sense.” See Robinson v. District of
Columbia, 736 F. Supp. 2d 254, 261 (D.D.C. 2010) (quoting Collins v. Harker Heights, 503 US.
1 15, 128 (1992)). “[O]nly a purpose to cause harm unrelated to the legitimate object [of the
police action] will satisfy the element of arbitrary conduct shocking to the conscience, necessary
for a due process violation.” Cnty. ofSacramento v. Lewis, 523 US. 833, 836 (1998) (emphasis
added); Silverman v. Barry, 845 F.2d 1072, 1080 (DC. Cir. 1988) (stating that Fifth Amendment
violations are limited to situations in which the government has engaged in “[1] a substantial
infringement of state law prompted by personal or group animus, or [2] a deliberate flouting of
the law that trammels significant personal or property rights”). This is plainly not a situation in
8
B. Fourth Amendment Claims (Counts I and II)
Plaintiff alleges in the alternative that the defendant officers’ search of her
residence and shooting of her dog violated her Fourth Amendment rights. See Comp]. W
93, 109. I disagree. Although 42 U.S.C. § 1983 provides a private right of action for
Fourth Amendment violations, municipal employees acting within the scope oftheir
official duties may raise qualified immunity as a defense to § 1983 claims “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). When analyzing the merits of a qualified immunity defense, the Court first
inquires whether the plaintiff has established a constitutional injury. Saucz'er v, Katz, 533
U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555 U.S. 223 (2009). If no such
injury is established by a preponderance of the evidence, the inquiry ends there. [d If,
however, the Court finds a constitutional violation, it must determine whether the
contours of the infringed right are sufficiently clear to hold the government actor liable
for its infraction.6 Id.
The touchstone of the inquiry here is the Fourth Amendment, which protects
against “unreasonable searches and seizures.” U.S. Const. amend. IV. A seizure occurs
which defendants gratuitously killed plaintiffs dog. As discussed further herein, the shooting,
which was motivated by legitimate safety concerns, was related to an authorized search of
plaintiffs residence. Therefore, it does not rise to the level of egregiousness remedied by the
Fifth Amendment.
6 Although Saucier’s two-prong analysis remains controlling, the Supreme Court has since
clarified that courts have discretion as to which prong they consider first. See Pearson, 555 U.S.
at 242 (“Because the two-step Saucier procedure is often, but not always, advantageous, the
judges of the district courts and the courts of appeals are in the best position to determine the
order of decisionmaking that will facilitate the fair and efficient disposition of each case”). I
find the Saucier procedure most advantageous here and, accordingly, follow its lead.
9
when “there is some meaningful interference with an individual’s possessory interests in
[his] property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Plaintiff’s claim is
predicated on two such seizures: the killing of her dog and the damage to her personal
property caused by defendants’ search. See Compl. W 93, 109. I begin with plaintiff’s
claim that MPD Officers Pezzat, Glynn, and McLeod violated her Fourth Amendment
rights by shooting her dog.
A police officer’s killing ofa dog is an indisputable seizure ofpersonal property.
See, e.g., Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008); San Jose Charter oft/1e Hells
Angels Motorcycle Club v. Ciry ofSan Jose, 402 F.3d 962, 975 (9th Cir. 2005); Brown v.
Muhlenberg, 269 F.3d 205, 210 (3d Cir. 2001). The sole question is whether such a
seizure is constitutional. For a warrantless seizure to be constitutional, it must have been
reasonable, meaning that the governmental interests justifying the seizure must outweigh
the deprivation caused by its intrusion. Graham, 490 U.S. at 396. Reasonableness
cannot be divined in a vacuum and its calculus allows “for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving.” Id. at 396-97.
The equities appear, at first blush, equally weighted. Plaintiff had a cognizable
interest in ensuring the safety of her pet and the government had a countervailing interest
in the safety of its officers. However, because the state’s interest is most robust when
the lives of its officers are in immediate danger, even “the extreme intrusion occasioned
by the destruction of [a] pet” is justified if the animal poses an imminent threat. See
Brown, 269 F.3d at 210-1 1. Thus, if the Court finds—and I do—that plaintiff’s dog
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