Harris v. United States Department of Veterans Affairs , 776 F.3d 907 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2014 Decided January 23, 2015
No. 13-5207
WILBERT HARRIS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00114)
Donald M. Temple argued the cause and filed the brief for
appellant.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Wyneva Johnson, Assistant U.S.
Attorney.
Before: ROGERS and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
2
RANDOLPH, Senior Circuit Judge: Wilbert Harris brought
an action against the United States Department of Veterans
Affairs (“VA”) seeking damages under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., for false arrest and
false imprisonment, assault and battery, negligence, negligent
infliction of emotional distress, and intentional infliction of
emotional distress. The district court granted the VA’s motion
for summary judgment on all claims. For the reasons that
follow, we reverse the grant of summary judgment on Harris’
assault and battery claim and on his claim of intentional
infliction of emotional distress to the extent that it is based on
his assault and battery claim. We affirm the grant of summary
judgment on all other claims.
I.
Harris is a Vietnam War veteran who suffers from post-
traumatic stress disorder (“PTSD”). On November 6, 2008, two
days after the election of President Obama, Harris attended a
group therapy session for veterans suffering from PTSD at the
VA Medical Center in Washington, D.C.1 David Sheets, a
clinical social worker, ran the session. Harris had with him a
newspaper announcing President Obama’s election, and he
displayed it proudly at the beginning of the session.
Harris and Sheets disagree on what occurred next, but
Harris does not dispute that Sheets asked him not to discuss
political issues during the session and, when he refused, Sheets
asked him to leave. When Harris did not, Sheets left the room
and returned a few minutes later with three VA police officers,
1
Harris’ amended complaint states that the incident in question
occurred “[o]n or about November 5, 2008,” although all other record
evidence, including Harris’ own Statement of Material Facts in
Dispute, states it occurred on November 6, 2008.
3
Lieutenant William N. Nesbitt, Sergeant Denise G. Gentry, and
Corporal Donald R. Christmas. As Harris left the room with the
officers, Sheets told the officers that Harris had caused a
“disturbance.” Sheets said Harris could not return to the group
therapy session. According to Harris, Harris asked for a patient
advocate, was “never violent [or] combative,” and attempted to
re-enter the therapy room to recover his personal items,
whereupon he was forced to the floor by the officers,
handcuffed, and placed under arrest. Harris contends that during
the arrest, one of the officers punched him in the ribs, fracturing
one of them.
The parties agree that two officers then took Harris to the
hospital’s emergency department, where he was treated for a
scrape on his left hand. After he was discharged from the
emergency department, Harris was placed in a holding cell and
issued a citation for “[d]isorderly [c]onduct which creates loud,
boisterous, unusual noise.” J.A. 55; see 38 C.F.R.
§ 1.218(b)(11). The citation was later dismissed without a
hearing. Harris states that he “endured multiple hospital visits
related to the injuries incurred” during the arrest, which included
a fractured rib and permanent nerve damage in his left arm. He
also claims that the attendant mental and emotional trauma
further aggravated his PTSD.
Harris’ amended complaint against the VA alleged false
arrest and false imprisonment, assault and battery, negligence,
negligent infliction of emotional distress, and intentional
infliction of emotional distress under the FTCA. See 28 U.S.C.
§ 1346(b)(1). The VA moved for dismissal, or, in the
alternative, for summary judgment. See Fed. R. Civ. P.
12(b)(1), (b)(6), 56. Harris opposed the VA’s motion, arguing
that “absent discovery” the VA’s motion was “premature and
should be denied.” Pursuant to the Rules of the District Court
for the District of Columbia, Harris included a “concise
4
statement” of “all material facts” that he thought necessary to be
litigated and “references to the parts of the record relied on to
support [his] statement.” Rule 7(h), Rules of the U.S. District
Court for the District of Columbia. His statement included
citations to affidavits and medical documents and referred to
disputes over Harris’ behavior during the confrontation, whether
he acted aggressively toward the police or forcefully tried to re-
enter the therapy room, how the police effected the arrest
(specifically, whether they struck Harris once he was
handcuffed), and whether Harris suffered a fractured rib and
other injuries because of the arrest, among other disputes.
Harris did not request discovery pursuant to Federal Rule of
Civil Procedure 56(d).
The district court granted summary judgment to the VA on
all claims. It concluded that “no reasonable jury could find that
the arresting officers engaged in conduct amounting to false
arrest and false imprisonment, assault and battery, negligence,
negligent infliction of emotional distress, or intentional
infliction of emotional distress.” The court determined that the
officers had probable cause to arrest Harris for disorderly
conduct “because he attempted to re-enter the group therapy
room against the officers’ unequivocal directive not to do so.”
The court also held that the officers’ use of force was reasonably
necessary under the circumstances, ignoring Harris’ later
professions of numbness and weakness in his left hand because
he had been diagnosed with carpal tunnel syndrome before his
arrest. The court made no mention of Harris’ alleged rib injury.
Because Harris’ arrest was secured with probable cause and
reasonably necessary force, his claims of intentional infliction
of emotional distress and negligent infliction of emotional
distress also failed.
5
II.
We review a district court’s decision to grant summary
judgment de novo and consider the evidence in the light most
favorable to the non-moving party. See Ayissi-Etoh v. Fannie
Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam).
Summary judgment may be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); see Fed. R. Civ. P. 56(a), (c).
“A dispute over a material fact is ‘genuine’ if ‘the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.’” Arrington v. United States, 473 F.3d 329,
333 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 248). A
fact is material if it “might affect the outcome of the suit under
the governing law.” Id. (quoting Anderson, 477 U.S. at 248). A
party opposing summary judgment must point the district court
to disputed facts “with the requisite specificity and support them
with appropriate references to the record.” Frito-Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). We may
affirm summary judgment on any ground supported by the
record. Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009).
III.
Tort liability under the FTCA is determined according to
the law of the place where the alleged acts or omissions
occurred—in this case, the District of Columbia. Tarpeh-Doe
v. United States, 28 F.3d 120, 123 (D.C. Cir. 1994). Applying
D.C. tort law, we consider each of Harris’ claims in turn.
1. False Arrest and False Imprisonment
6
The elements of the torts of false arrest and false
imprisonment are: (1) detention or restraint against one’s will
within boundaries fixed by the defendant, and (2) the
unlawfulness of such restraint. Edwards v. Okie Dokie, Inc., 473
F. Supp. 2d 31, 44 (D.D.C. 2007).2 The existence of probable
cause for arrest defeats claims for false arrest and imprisonment.
See id.; Gabrou v May Dep’t Stores Co., 462 A.2d 1102, 1104
(D.C. 1983) (per curiam).
Congress authorized the Secretary of Veterans Affairs to
“prescribe regulations to provide for the maintenance of law and
order and the protection of persons and property on [VA]
property.” 38 U.S.C. § 901 (a)(1). Violations of such
regulations may be punished by fines or imprisonment for not
more than six months, or both. Id. § 901 (c). One such
regulation, codified at 38 C.F.R. § 1.218, establishes the rules of
conduct “at all property under the charge and control of [the]
VA.” Id. § 1.218(a). Under § 1.218(a)(5), all persons on VA
property are barred from (among other things) engaging in
conduct “which creates loud or unusual noise . . . which
otherwise impedes or disrupts the performance of official duties
. . . [and] which prevents one from obtaining medical or other
services.” Id. A disturbance can also include the “[f]ailure to
leave the premises when so ordered,” whereupon “the offender
is subject to arrest and removal from the premises.” Id.; see also
2
“In the District of Columbia, the torts of false arrest and false
imprisonment are indistinguishable.” Joyce v. United States, 795 F.
Supp. 1, 4 (D.D.C. 1992), aff’d, 986 F.2d 546 (D.C. Cir. 1993)
(unpublished) (citing Shaw v. May Dep’t Stores Co., 268 A.2d 607
(D.C. App. 1970)).
7
id. § 1.218(b)(11) (specifying schedule of offenses for disorderly
conduct punishable pursuant to paragraph (a)).3
This regulation has been read to include causing a
commotion that drew VA employees away from their ordinary
duties, United States v. Agront, No. 13-10218, 2014 WL
6600419, at *6 (9th Cir. Nov. 21, 2014), and that “tended to
‘impede or prevent the normal operation of a service’” at a VA
facility. United States v. Encinger, 4:10CR3027, 2010 WL
2771884, at *4 (D. Neb. Jul. 13, 2010) (quoting 38 C.F.R.
§ 1.218(11)); see also United States v. Shepard, 362 F. App’x
107, 112 (11th Cir. 2010) (unpublished).
Harris emphasizes that there is a factual dispute over who
ordered Harris not to reenter the group therapy room—he says
it was Sheets while the district court stated it was the police.
Appellant Br. at 10. But the dispute is of no moment.
Undisputed evidence suffices to establish probable cause. In his
amended complaint, Harris concedes that Sheets expelled him
from group therapy and told the police that Harris caused a
“disturbance” and “could not return to [the] group or continue
treatment.” Harris states that he acted calmly, that he “did not
refuse to leave the [group therapy] room,” and that he “never
attempted to forcefully reenter the [group therapy] room and
never disobeyed a police officer’s statement.” But Harris
acknowledges that even after Sheets asked him to leave group
3
Harris was cited only for a violation of the portion of the
regulation that lists the schedule of offenses. 38 C.F.R.
§ 1.218(b)(11). We note, as have other courts, that a violation of
§ 1.218(b)(11) is tantamount to a violation of the offenses prohibited
by § 1.218(a)(5). See United States v. Dyers, No. 1:06-MJ-455-AJB,
2007 WL 397109, at *1-2 (N.D. Ga. Jan. 30, 2007); United States v.
Fentress, 241 F. Supp. 2d 526, 529 (D. Md. 2003), aff’d, 69 F. App’x
643 (4th Cir. 2003).
8
therapy, he remained in the room and only left when Sheets
returned with three VA police officers, and, once outside the
room, he attempted to reenter, whether “forcefully” or not.
Taken together, these undisputed facts were sufficient to
justify arrest. Sheets had ordered Harris to leave group therapy,
and the police observed Harris’ failure to comply when they
entered the room. “Failure to leave the premises when so
ordered constitute[d] a [ ] disturbance” that subjected Harris “to
arrest and removal from the premises” under VA regulations.
38 C.F.R. § 1.218(a)(5). Sheets also interrupted the therapy
session he was running to address Harris’ alleged “disturbance.”
Conduct that “tend[s] to disturb the routine operations of a VA
hospital . . . is prohibited” under § 1.218(b)(11). Fentress, 241
F. Supp. 2d at 530 (quoting United States v. Williams, 892 F.2d
1044, at *2 (6th Cir. 1990) (per curiam) (unpublished)); see also
Agront, 2014 WL 6600419, at *7.
Although Harris was charged only with “[d]isorderly
[c]onduct which creates loud, boisterous, unusual noise,”
J.A. 55, under 38 C.F.R. § 1.218(b)(11), probable cause may
exist “to arrest for any offense, even if it differs from the offense
for which the arrest was actually made.” Enders v. District of
Columbia, 4 A.3d 457, 469 (D.C. 2010). The undisputed
evidence in this case revealed the probability of several
offenses: failing to leave the premises after being so ordered,
distracting a VA employee (Sheets), and inhibiting medical
treatment (group therapy). See United States v. Prandy-Binett,
995 F.2d 1069, 1073-74 (D.C. Cir. 1993).
The evidence may have been insufficient to convict Harris,
but the only question before us is whether the police had
probable cause to arrest him, which the undisputed facts show
that they did. Accordingly, we affirm the grant of summary
judgment as to this claim.
9
2. Assault and Battery
An assault is an intentional attempt or threat to do physical
harm to another. A battery is an intentional act that causes
harmful or offensive bodily contact. See Evans-Reid v. District
of Columbia, 930 A.2d 930, 937 (D.C. 2007). The police have
a qualified privilege to commit both torts when using
“reasonable force to effect an arrest, provided that the means
employed are not in excess of those which the actor reasonably
believes to be necessary.” Arrington, 473 F.3d at 335 (quoting
Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.
1993)). “The ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Graham
v. Connor, 490 U.S. 386, 396 (1989); see also Plumhoff v.
Rickard, 134 S. Ct. 2012, 2020 (2014). Accordingly, “a
defendant’s motion for summary judgment is to be denied only
when . . . 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).
The district court concluded that “there is no basis for a trier
of fact to conclude that the officers used excessive force in
executing the lawful arrest of [Harris].” But this conclusion
overlooks genuine issues of material fact about what occurred
during Harris’ arrest, issues brought to the district court’s
attention with reasonable specificity in Harris’ Statement of
Material Facts in Dispute. See Frito-Lay, 863 F.2d at 1033-34.
Sheets stated that during Harris’ confrontation with the
officers outside of the therapy room, Harris became “verbally
and emotionally out of control, resisting compliance.” Harris
then “appeared to attack one officer and was then taken to the
ground and handcuffed by the police. He did not appear to be
10
injured but he did appear to be a danger to others.” The
Uniform Offense Report filed the day of the incident and signed
by one of the responding officers, Donald Christmas, describes
how Harris “refuse[d] to comply” with the officers and “went
towards LT. NESBIT [sic] and [sic] an aggressive way and got
combatant [sic] with police officers,” whereupon “he was then
taken to the ground and put into restraints.” However, the Use
of Force Report Event Record that Nesbitt filed the day of the
incident makes no mention of Harris coming toward him. It
reported only that Harris “failed to comply with the police
officers[’] directives . . . became distributive [sic] and tried to
enter a group session room forcefully,” whereupon he “was
taken down to the floor[,] [h]andcuffed[,] and escorted to the ER
for treatment for difficulty breathing.”
In a declaration Nesbitt executed in May 2012, he states that
Harris “failed to comply with police directives and attempted to
enter a room forcefully. I then assisted with a take-down and
restraint.” This declaration makes no mention of Harris’
difficulty breathing.
Gentry’s contemporaneous Use of Force Event Record
states that Harris “failed to comply with directives, [and] he
tried to enter a room forcefully,” and that Gentry “assisted Cpl.
Christmas and Lt. Nesbitt with a takedown to restrain and
escort.” Her later declaration relates essentially the same
sequence of events.
Christmas’ handwritten Use of Force Report states that
Christmas “grab[b]ed [Harris’] left hand and put him in a[n] arm
lock back down w[h]ere he then was put in restraint[s] and
escorted to the E.R.” Christmas’ declaration repeats the
declarations of the other officers, stating: “Harris failed to
comply with police directives and attempted to enter a room
forcefully. I then assisted with a take-down and restraint and,
11
along with Sergeant Gentry, I escorted Mr. Harris to the [VA
Medical Center] Emergency Department.”
Harris has a quite different story. His affidavit states that he
acted and spoke calmly, “never attempted to forcefully reenter
the room and never disobeyed a police officer’s statement.”
But, according to Harris’ Statement of Material Facts in Dispute,
“[r]egardless, the VA police officers forcefully threw [Harris] to
the ground, placed him in a lock, and handcuffed him.”
Corporal Christmas “punched [him] in the rib after he was . . .
handcuffed.” Harris claims his physical injuries included “a
fractured rib, scrapes to his forehead and left hand, ongoing
neuropathy in his left fingers, [ ] bursitis in his left and right
arms,” and increased PTSD-related disability. Harris’ medical
records show that he complained of pain to his chest
immediately after being brought to the emergency department
and that he returned to the hospital two days after the incident
complaining of sharp chest pain and was diagnosed with a rib
fracture.
Whether the police officers’ use of force in restraining
Harris was reasonable turns on contested questions of
fact—including whether Harris was “actively resisting arrest or
attempting to evade arrest by flight,” Graham, 490 U.S. at 396,
whether he “pose[d] an immediate threat to the safety of the
officers or others,” id., and whether the police struck him after
he was in restraints, see Arrington, 473 F.3d at 336-37; Tafler v.
District of Columbia, 539 F. Supp. 2d 385, 390-91 (D.D.C.
2008); see also DeGraff v. District of Columbia, 120 F.3d 298,
302 (D.C. Cir. 1997).
“[A] plaintiff may defeat a summary judgment granted to a
defendant if the parties’ sworn statements are materially
12
different.” Arrington, 473 F.3d at 337.4 Here, the affidavits,
declarations, pleadings, and other evidence show that there are
factual disputes that could affect the outcome of the suit. See
Anderson, 477 U.S. at 247-49. First, it is disputed what
happened immediately before Harris was taken to the ground
and handcuffed. Sheets and the Uniform Offense Report state
that Harris “attack[ed]” one of the officers, but Nesbitt, Gentry,
and Christmas state only that Harris attempted to enter the room
“forcefully.” Harris claims that he calmly turned to reenter the
room to collect his belongings. Second, it is disputed whether
Harris was struck in the chest during the arrest, as he claims and
as Nesbitt’s contemporaneous Use of Force Report Event
Record (which said Harris had trouble breathing) could suggest.
Third, it is disputed whether Harris’ rib was fractured as a result
of the arrest, as he claims and as the doctor’s reports could
suggest. Fourth, it is disputed whether Harris suffered
permanent nerve damage as a result of the arrest, as he claims,
but as some medical documentation disputes. Fifth, it is
disputed whether Harris’ arrest contributed to an increase in his
PTSD disability rating, as he claims, or if it merely correlated
with it, as a declaration from a VA Service Center Manager
states.
4
The VA argues that we should not rely on Arrington for the
proposition that a plaintiff’s sworn statement, contradicting the
defendant’s version of the facts, is sufficient to create a genuine issue
in dispute, because “unlike Arrington, Harris’ affidavit appears to
contradict his own complaints and the authrotiative [sic] medical
evidence.” Appellee Br. at 17 n.2.
The VA has misread the sealed medical records. The VA writes
in its brief that Harris did not complain of rib pain resulting from the
incident “until over a year later.” Id. at 17. That statement is not
accurate. Harris’ statements and the medical evidence are not
contradictory.
13
Weighing credibility, resolving factual disputes, and
drawing legitimate inferences are matters for the fact-finder;
thus, summary judgment is inappropriate. See Pardo-
Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010).
Accordingly, we reverse the grant of summary judgment on
Harris’ assault and battery claim.
3. Negligence
Harris’ third claim is for negligence. He claims that Sheets
had a duty to treat him “in a manner that was sensitive to his
victimization” and that “Sheets became mean spirited and
vindictive,” caused the confrontation with police, and,
consequently, caused “unnecessary harm to Harris.” The district
court held that no reasonable jury could find that the arresting
officers acted negligently. Because Harris advanced no
argument in his brief before us about why the district court
erred, we do not consider this claim. See U.S. ex rel. Totten v.
Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004). We
therefore affirm the district court’s grant of summary judgment
on Harris’ negligence claim.
4. Negligent Infliction of Emotional Distress
To make out a claim for negligent infliction of emotional
distress, a plaintiff must show that “(1) the plaintiff was in the
zone of physical danger, which was (2) created by the
defendant’s negligence, (3) the plaintiff feared for his own
safety, and (4) the emotional distress so caused was serious and
verifiable.” Rice v. District of Columbia, 774 F. Supp. 2d 25, 33
(D.D.C. 2011).
Harris argues that “Sheets was entrusted with the care of
Veterans who were significantly mentally and emotionally ill,”
and that “he knew there was no basis to arrest Harris” but
14
“called security . . . and recklessly caused them to become
involved in the unnecessary arrest and detention thereby
breaching his duty to Harris.” Harris concludes: “As a direct
and proximate result of the intentional and wrongful actions of
[Sheets], [Harris] suffered physical harm, emotional distress and
mental anguish.”
The district court did not directly address the negligent
infliction of emotional distress claim; instead, the court
considered it with the claim of intentional infliction of emotional
distress, concluding that both claims failed because the VA
police arrested Harris with probable cause and reasonably
necessary force.
We affirm the grant of summary judgment on the negligent
infliction of emotional distress claim without reaching its merits
because Harris did not properly plead the claim in his amended
complaint. Harris describes Sheets’ actions as knowing and
“intentional,” and “[i]ntent and negligence are regarded as
mutually exclusive grounds for liability.” District of Columbia
v. Chinn, 839 A.2d 701, 706 (D.C. 2003) (internal quotation
marks and citation omitted); see also DAN B. DOBBS ET AL., THE
LAW OF TORTS § 31 (2d ed. 2011) (“Any given act may be
intentional or it may be negligent, but it cannot be both.”).
Merely using the term negligence does “not raise a cognizable
claim of negligence.” Chinn, 839 A.2d at 708. Here, as in Rice,
Harris “fail[ed] to distinguish the bases for [his] claims.” Rice,
774 F. Supp. 2d at 33. Because the amended complaint “does
not distinguish between negligent and intentional acts, does not
identify any specific act that was allegedly negligent, and fails
to make out a claim of negligent infliction of emotional
distress,” id. at 33-34, we affirm the district court’s grant of
summary judgment on this claim.
5. Intentional Infliction of Emotional Distress
15
To make out a claim for intentional infliction of emotional
distress, Harris “must show that the [VA] acted in an (1)
extreme and outrageous manner (2) which was intentionally or
recklessly calculated to cause [Harris] (3) severe emotional
distress.” Joyce, 795 F. Supp. at 5 (citing Green v. Am. Broad.
Co., 647 F. Supp. 1359, 1362 (D.D.C. 1986)). Generally,
“[l]iability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Abourezk v. N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir.
1990) (quoting Sere v. Grp. Hospitalization, Inc., 443 A.2d 33,
37 (D.C. 1982)) (alteration in original); see also RESTATEMENT
(SECOND) OF TORTS § 46 cmt. d (1965).
In his amended complaint, Harris alleged that Sheets “acted
in a manner that he hoped would cause intentional harm to
[Harris], including physical harm.” Sheets allegedly “knew or
should have known that his calling of security and excluding
[Harris] from the class would result in further emotional and
mental harm to [Harris],” and, as a result of Sheets’ “intentional
and wrongful actions [Harris] suffered physical harm, emotional
distress and mental anguish.” In his opposition to the VA’s
motion for summary judgment, Harris stated that he based his
intentional infliction of emotional distress claim on both the VA
officers’ alleged use of excessive force and the allegedly
unjustified arrest. He distinguished his case from Gabrou v.
May Department Stores, 462 A.2d at 1102, on which the VA’s
motion for summary judgment relied, by noting that the plaintiff
in Gabrou failed to plead assault and battery in his complaint,
whereas “Harris’s claim of excessive force is at the heart of his
Amended Complaint and is sufficiently pled with facts that
support his claim.” He argues that the fact that he was “arrested,
beaten, and brutalized could result in a jury concluding that the
officers’ behavior was ‘outrageous,’” and, thus, his claim for
16
intentional infliction of emotional distress should survive
summary judgment.
As an initial matter, while Harris describes Sheets’ actions
in his amended complaint, the VA is the defendant and its agents
(the police officers) allegedly committed the assault and battery.
As the VA concedes in its papers before the district court and as
the district court recognized in its decision, the issue here is
whether the officers’ actions constituted intentional infliction of
emotional distress. The VA, through the doctrine of respondeat
superior, would be liable for torts committed by the VA police
officers acting in their scope of employment. See Holder v.
District of Columbia, 700 A.2d 738, 741-42 (D.C. 1997).
Accordingly, like the district court, we construe Harris’ claim as
against the defendant, the VA, and not Sheets.
As discussed, we hold that the VA had probable cause to
arrest Harris. To the extent that Harris’ claim of intentional
infliction of emotional distress arises from the mere fact of his
arrest, we agree with the district court that the probable cause for
arrest defeats those claims. See Joyce, 795 F. Supp. at 5. But
insofar as Harris’ emotional distress claim relates to his assault
and battery claim (and to the underlying allegations of excessive
force), we reverse.
The district court predicated its ruling on the basis that
Harris’ arrest was effectuated with reasonable force. But that
conclusion involves disputed factual issues, such as whether the
police struck Harris once he was restrained, fracturing his rib
and causing other injuries.
Applying the established three-part standard for intentional
infliction of emotional distress, we note, first, that “a serious
case of excessive force” can constitute outrageous behavior such
that it satisfies a claim of intentional infliction of emotional
17
distress. Gabrou, 462 A.2d at 1105 (internal quotation marks
and citation omitted); see Jackson v. District of Columbia, 412
A.2d 948, 955 (D.C. 1980); see also Bender v. City of New York,
78 F.3d 787, 791 (2d Cir. 1996) (applying New York law);
Robins v. Harum, 773 F.2d 1004, 1011 (9th Cir. 1985) (applying
Washington state law).
Second, the requisite intent of the defendant can be
“inferred, either from the very outrageousness of the defendant’s
acts or . . . when the circumstances are such that ‘any reasonable
person would have known that (emotional distress and physical
harm) would result.’” Waldon v. Covington, 415 A.2d 1070,
1077 (D.C. 1980) (citation omitted); see also Kotsch v. District
of Columbia, 924 A.2d 1040, 1046 (D.C. 2007). Such an
inquiry “is normally a factual question for the jury.” Ross v.
DynCorp, 362 F. Supp. 2d 344, 360 (D.D.C. 2005) (quoting
Waldon, 415 A.2d at 1078).
Third, with regard to the required showing of severe
emotional distress, “[w]hile tort law historically required some
physical manifestation or symptom of the alleged emotional
distress as a condition for recovery, current D.C. law allows ‘an
action for intentional infliction [of emotional distress to] be
made out even in the absence of physical injury or impact.’” Id.
at 360-61 (alteration in original) (quoting Waldon, 415 A.2d at
1076). Harris states that he “endured multiple hospital visits,”
“suffered substantial mental and emotional trauma,” and
“aggravated [his] PTSD” as a result of the incident. The VA
contests the degree to which his PTSD worsened and its cause.
Harris’ alleged injuries, including a fractured rib and worsened
PTSD, might suffice to establish severe emotional distress. See
RESTATEMENT (SECOND) OF TORTS § 46 cmt. k (“Normally,
severe emotional distress is accompanied or followed by shock,
illness, or other bodily harm, which in itself affords evidence
that the distress is genuine and severe.”); see also District of
18
Columbia v. Tulin, 994 A.2d 788, 801 (D.C. 2010) (“aggravation
of a pre-existing depression” could support emotional distress
claim).
Given how little is actually established about the VA
police’s arrest of Harris and its consequences on his health, we
reverse the grant of summary judgment on this claim. See Tulin,
994 A.2d at 803.
IV.
We reverse the grant of summary judgment on Harris’
assault and battery claim and on his claim of intentional
infliction of emotional distress to the extent that it is based on
his assault and battery claim. We affirm the grant of summary
judgment on all other claims.
So ordered.