qualified privilege defense to common law assault claim has “standard . . . similar to the excessive force standard applied in the Section 1983 context” (quoting Rogala v. District of 14 Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998))
How later courts described this case
- qualified privilege defense to common law assault claim has “standard . . . similar to the excessive force standard applied in the Section 1983 context” (quoting Rogala v. District of 14 Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998))
- “Summary judgment is appropriately granted ‘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.’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LORRI OKPARA,
Plaintiff,
v. Civil Action No. 14-535 (RDM)
DISTRICT OF COLUMBIA; KAMIL
REMBISZEWSKI; ROBERT L. HOWARD,
Defendants.
MEMORANDUM OPINION
In 2013, Lorri Okpara was arrested at her home and detained at a District of Columbia
police station for 24 hours. While in police custody, she was twice taken to an area hospital to
be treated for diabetes. According to Okpara, during the second of these two trips, the officers
who brought her to the hospital mistreated her, shoving her into the back of the police van and
over-tightening her handcuffs. After being released, Okpara was diagnosed with a permanent
radial nerve injury in her left wrist. She subsequently brought this suit against the District and
the officers who arrested her, alleging negligence, assault and battery, and violations of her civil
rights. The case is now before the Court on the District’s motion for partial summary judgment,
Dkt. 27. For the following reasons, the Court will GRANT the District’s motion in part and
DENY it in part.
I. BACKGROUND
For the purpose of evaluating the District’s motion for partial summary judgment, the
following facts are construed in the light most favorable to Okpara. See Arrington v. United
States, 473 F.3d 329, 333 (D.C. Cir. 2006).
Lorri Okpara is a 53-year-old resident of the District of Columbia. See Compl. ¶ 4; Dkt.
28-1 at 2 (Pl.’s Opp., Ex. 2). On July 28, 2013, Okpara was arrested at her home for assaulting
her husband. Compl. ¶ 7. She was taken to the jail at D.C. police headquarters, where she was
detained overnight. Id. While detained, Okpara—who is diabetic—became hyperglycemic, and
was twice taken to Washington Hospital Center and provided with insulin. Dkt. 28 at 1–2 (Pl.’s
Statement of Material Facts (“SMF”) ¶¶ 3–5). The police officers who accompanied Okpara to
the hospital the second time were Officers Kamil Rembiszewski and Robert Howard. See id. at 2
(Pl.’s SMF ¶ 6). This lawsuit arises out of events occurring during the second trip to and from
the hospital.
According to Okpara, when Rembiszewksi and Howard put her in a police vehicle to be
taken to the hospital, she told them that she had a spinal condition that would make it painful to
be handcuffed behind her back. Dkt. 28-1 at 8 (Pl.’s Opp., Ex. 3, at 5). Howard allegedly said,
“That’s not my problem,” and handcuffed Okpara behind her back. Id. Okpara states that he
applied the handcuffs extremely tightly and, when she asked him to loosen them, he ignored her.
Id.; see also Dkt. 27-1 at 6 (Defs.’ Motion for Partial Summary Judgment (“MPSJ”), Ex. 1, at
127:20) (“Okpara Depo.”). According to Okpara, the handcuffs caused stinging pain in her left
hand. Dkt. 27-1 at 7 (Okpara Depo. 134:15–16). She repeatedly asked the officers to loosen the
handcuffs, but they refused to do so. Id. (Okpara Depo. 134–35).
After Okpara was administered insulin, Officers Rembiszewski and Howard took her
back to the police station. Because her blood sugar was low, Okpara had trouble getting back
into the police vehicle, and Howard allegedly said: “You better get up in that truck, because if I
have to help you get up in there . . . .” Id. at 10 (Okpara Depo. 147:5–6). When Okpara could
not climb into the van unassisted, Howard purportedly “took [Okpara] by [her] pants leg and
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[her] arm and . . . threw [her] up in there.” Id. (Okpara Depo. 147:12–13); see also id. (Okpara
Depo. 148:20–22) (“He just took my pants leg and took my arm while he was behind me and
threw me up on the seat.”). Okpara landed on the floor of the van. Id. (Okpara Depo. 149:19).
She testified in her deposition that she was visibly distressed by her mistreatment. Id. (Okpara
Depo. 149:1). Howard agrees that Okpara was “upset.” Dkt. 27-3 at 4 (Defs.’ MPSJ, Ex. 3, at
15:20) (“Howard Depo.”).
Okpara was released after 24 hours without being charged. Dkt. 28 at 1 (Pl.’s SMF ¶ 2).
The next day, she went to Providence Hospital in D.C., complaining of pain and swelling in her
left wrist and numbness in her fingers. Id. at 2 (Pl.’s SMF ¶ 10); see also Dkt. 28-1 at 16–17
(Pl.’s Opp., Ex. 4, at 2) (doctor’s report noting “constant” pain and inability to touch left thumb
to fingers). A month later, she saw a neurologist, Dr. Pedro Macedo, who diagnosed her with a
radial nerve injury in her left hand as a result of the handcuffing. Dkt. 28-1 at 32 (Pl.’s Opp, Ex.
5). A second physician, Dr. Michael Batipps, confirmed the diagnosis in November. See id. at
39 (Pl.’s Opp, Ex. 6) (doctor’s report noting that Okpara has a “classical handcuff neuropathy
involving the left . . . superficial radial nerve sensory branch”). On subsequent visits in March
and September 2014, Dr. Batipps observed the same symptoms. See id. at 43, 45. In September,
Dr. Batipps wrote that Okpara had “reached the maximum medical improvement” and opined
that her wrist injury was likely a “permanent nerve injury.” Id. at 45.
In March 2014, Okpara brought this suit in D.C. Superior Court. See Dkt. 1-1 (Compl.).
Her complaint asserted four counts against the District, Rembiszewski, and Howard, all arising
out of injuries she sustained in traveling between the police station and the hospital. She alleged
one count of negligence against the District of Columbia arising out of the officers’ lack of due
care in tightening her handcuffs, id. ¶¶ 9–11 (Count I); one count of assault and battery against
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the District arising out of the officers’ actions in throwing her into the police van, id. ¶¶ 12–15
(Count II); one count of assault and battery against the District arising out of the officers’ use of
force with the handcuffs, id. ¶¶ 16–19 (Count III); and one count against the officers, under 42
U.S.C. § 1983, for violating her civil rights in using excessive force, id. ¶¶ 20–23 (Count IV).
The District removed the case to this Court on March 31, 2014. Dkt. 1.
The case is now before the Court on the District’s motion for partial summary judgment
on Counts I and II. Dkt. 27.
II. LEGAL STANDARD
Summary judgment is appropriately granted “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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895–96 (D.C. Cir. 2006). A fact is “material” if it is capable
of affecting the outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, 477 U.S. at
248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S.
at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record
. . . .” Fed. R. Civ. P. 56(c)(1)(A).
The party seeking summary judgment “bears the heavy burden of establishing that the
merits of his case are so clear that expedited action is justified.” See Taxpayers Watchdog, Inc.
v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under
consideration, “the evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. Pepco, 447
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F.3d 843, 850 (D.C. Cir. 2006). The non-movant’s opposition, however, must consist of more
than mere unsupported allegations or denials and must be supported by affidavits, declarations,
or other competent evidence, setting forth specific facts showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant
must provide evidence that would permit a reasonable jury to find in its favor. See Laningham v.
United States Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If his evidence is “merely colorable”
or “not significantly probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at
249–50.
III. DISCUSSION
The District moves for summary judgment only with respect to two of Okpara’s four
claims: Count I, which alleges negligence against the District of Columbia, and Count II, which
alleges assault and battery against the District of Columbia arising out of the officers’ use of
force in shoving Okpara into the police van. See Dkt. 27 at 5–8; Compl. ¶¶ 9–15. Both counts
are directed at the District, rather than the individual officers. See Compl. ¶¶ 9–15. Unlike a
municipality sued under 42 U.S.C. § 1983, however, see Monell v. Dep’t of Soc. Servs. of the
City of New York, 436 U.S. 658, 691–92 (1978), the District “is vicariously liable for the
intentional and negligent [torts] of its officers acting within the scope of their employment,”
Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007). For present purposes, the
District does not dispute that the negligence or the intentional misconduct of the officers, if any,
may be attributed to it on a theory of vicarious liability. With this in mind, the Court will
consider each count in turn.
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A. Count I (Negligence)
In Count I, Okpara alleges that D.C. police officers “acted in a grossly negligent manner”
by “over-tightening [her] handcuffs and refusing to loosen them.” See Compl. ¶ 10. Under D.C.
law, a plaintiff in a negligence action must establish “the applicable standard of care, a deviation
from that standard by the defendant, and a causal relationship between that deviation and the
plaintiff’s injury.” Evans-Reid, 930 A.2d at 937 n.6; see also Dormu v. District of Columbia,
795 F. Supp. 2d 7, 29 (D.D.C. 2011). Although “no expert testimony is needed if the subject
matter is within the realm of common knowledge and everyday experience,” Hill v. Metro.
African Methodist Episcopal Church, 779 A.2d 906, 908 (D.C. 2001) (internal quotation marks
omitted), it is well established in D.C.—and Okpara does not dispute—that expert testimony is
required in a negligence case stemming from the misapplication of handcuffs, Tillman v.
WMATA, 695 A.2d 94, 97 (D.C. 1997); Richardson v. Korson, 905 F. Supp. 2d 193, 197 (D.D.C.
2012).
The District argues that summary judgment is appropriate on Okpara’s negligence claim
because she has not “identified any specific standard of care” violated by either Rembiszewski or
Howard. Dkt. 27 at 5–7. Under D.C. law, expert testimony
is not sufficient if it consists merely of the expert’s opinion as to what he or she
would do under similar circumstances. Nor is it enough for the expert simply to
declare that the [defendant] violated the national standard of care. Rather, the
expert must clearly articulate and reference a standard of care by which the
defendant’s actions can be measured. Thus the expert must clearly relate the
standard of care to the practices in fact generally followed by other
comparable . . . facilities or to some standard nationally recognized by such units.
Briggs v. WMATA, 481 F.3d 839, 846 (D.C. Cir. 2007) (quoting Clark v. District of Columbia,
708 A.2d 632, 635 (D.C. 1997)) (alterations in Briggs); see also Phillips v. District of Columbia,
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714 A.2d 773 (D.C. 1998). The District argues that the testimony of Okpara’s expert on police
practices does not meet this standard. The Court disagrees.
Okpara has submitted an expert report prepared by Robert Klotz, a former police officer
who has frequently testified on use-of-force issues. See Dkt. 28-1 at 59–61 (Pl.’s Opp, Ex. 8)
(“Klotz Report”); see also id. at 51–58 (Pl.’s Opp., Ex. 7) (“Klotz Resume”), 62–68 (Pl.’s Opp,
Ex. 8) (“Klotz Depo.”). In his report, Klotz states that the Commission on Accreditation of Law
Enforcement Agencies (“CALEA”) “has established . . . national standards for police activities,”
id. at 61 (Klotz Report at 2); that one specific CALEA rule establishes national standards for
“prisoners and restraints,” id.; that the Metropolitan Police Department had adopted standards
that complied with these national standards, id.; and that, if Rembiszewski and Howard acted in
the way that Okpara claimed they did, their actions would have “violate[d] both national and
local police standards,” id. Standing alone, it is not clear that this report would suffice. Klotz
does identify the standard-setting organization, and he does opine that, if Okpara’s allegations
are accepted as true, the officers failed to comply with that standard. But he does not articulate
what the actual standard is or attach copies of the standard to his report.
The District, however, had ample opportunity to explore these kinds of details at Klotz’s
deposition, where Klotz attested to his opinion. He brought to his deposition not only the portion
of the CALEA standards he described in his report but also a portion of a book on the use of
force, the relevant provision of the Metropolitan Police Department’s general orders, and a report
on the effects of handcuffing. See Dkt. 28-1 at 64–65 (Klotz Depo. 10–13, 86–89). Klotz also
explained that “training material” used by the Metropolitan Police Department at the relevant
time instructed officers to use the tips of their index fingers to check “the top, bottom, and side”
of the handcuff to ensure there was sufficient room. Id. at 65 (Klotz Depo. 86:5–17). He further
7
testified that “all the training that [he] [has] seen done by other departments tell them to do [this
same] circumference type check,” including “handcuffing orders from several of the counties in
Maryland, Virginia,” and “on the West Coast.” Id. (Klotz Depo. 87:17–88:11). He stated that
“any reasonable officer” would have followed such a protocol, and that, if Okpara’s testimony
was believed, that “circumference type of check . . . doesn’t appear to have been done in this
case.” Id. (Klotz Depo. 87:7–21); see also Dkt. 30 at 17 (Defs.’ Resp. to Pl.’s Statement of
Undisputed Material Facts ¶ 20).1 It is true that Klotz did not state the basis for his opinion as
clearly as he might. But, taken together, his report and the deposition are sufficient to show that
he has “articulate[d] and reference[d] a standard of care by which the defendant[s’] actions can
be measured.” Briggs, 481 F.3d at 846 (emphasis omitted).
A 2011 opinion from this court, Dormu, 795 F. Supp. 2d 7, is instructive. In Dormu, an
African-American resident of the District sued the city and several police officers for damages
arising out of a false arrest. Id. at 15. Dormu, like Okpara, brought a negligence claim against
the city for its officers’ failure to follow the national standard of care in handcuffing and, as here,
relied on Klotz’s testimony to establish that standard. Id. at 28. Judge Kennedy, in determining
whether Dormu had established a standard of care, distinguished between Klotz’s first report—
which relied only on a “training bulletin on the use of handcuffs”—and his second report, which
relied on an “authoritative text” and a Department of Justice-approved lesson plan, which he also
1
Plaintiff also asks that the Court consider an excerpt from a book, John G. Peters Jr., Tactical
Handcuffing For Chain- and Hinged-Style Handcuffs (1988), which endorses the circumference
test as well. See Dkt. 28-1 at 77–79 (Pl.’s Opp., Ex. 12). The Court declines to do so, however,
because the excerpt is hearsay, the author of the book has not been offered or qualified to testify
as an expert, and there is no evidence that Klotz relied on the excerpt in forming his expert
opinion. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.”); Greer v.
Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007).
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found authoritative. Id. at 29. Judge Kennedy concluded that while the first report was likely
too conclusory to establish a national standard of care, his second report “sufficiently
‘articulate[d] and reference[d] a standard of care.’” Id. at 29 (quoting Clark, 708 A.2d at 635).
The same conclusion applies to Klotz’s report and subsequent deposition testimony in this case.
The District advances one additional argument as to why summary judgment is warranted
on Count I, arguing that Okpara cannot simultaneously assert claims for negligence and assault
and battery based on the same incident. Dkt. 30 at 1–2. But the District advances this argument
for the first time in its reply brief, and it is well established in this circuit that the Court need not
“address arguments raised for the first time in a party’s reply.” Jones v. Mukasey, 565 F. Supp.
2d 68, 81 (D.D.C. 2008); see also Rollins Envtl. Servs. v. EPA, 937 F.2d 649, 652 n. 2 (D.C. Cir.
1991). Were the Court to consider the District’s argument, moreover, it would fail on the merits,
for the reasons articulated by Judge Kennedy in Dormu. See 795 F. Supp. 2d at 30–31. Under
D.C. law, a plaintiff may simultaneously assert claims for negligence and assault and battery
where the negligence claim is (1) “distinctly pled”; (2) “based upon at least one factual scenario
that presents an aspect of negligence apart from the use of excessive force itself”; and (3) based
on “a distinct standard of care.” District of Columbia v. Chinn, 839 A.2d 701, 711 (D.C. 2003).
Okpara’s negligence claim meets these requirements: It is pled in its own count, Compl. ¶¶ 9–
11; it can be understood as separate from her assault and battery claim, see Dormu, 795 F. Supp.
2d at 30 (distinguishing between a scenario in which officers “intentionally applied the handcuffs
tightly” and one in which they “recklessly believed that [they] had properly applied the
handcuffs”); and it is based not on the “general excessive force standard” but on the standard
identified by Klotz in his report and deposition, id. at 31.
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In short, the District has raised no material barrier to Okpara’s negligence claim, and the
Court will DENY the District’s motion for summary judgment on Count I.
B. Count II (Assault and Battery)
In Count II, Okpara alleges that the officers assaulted and battered her “by throwing [her]
into the transport vehicle.” Compl. ¶ 13. Under District of Columbia law, “[a] police officer has
a qualified privilege to use reasonable force . . . , provided that the means employed are not ‘in
excess of those which the actor reasonably believes to be necessary.’” Etheredge v. District of
Columbia, 635 A.2d 908, 916 (D.C. 1993) (quoting Jackson v. District of Columbia, 412 A.2d
948, 956 (D.C. 1980)). “This inquiry is done ‘from the perspective of a reasonable officer on the
scene,’ with allowance for the officer’s need to make quick decisions under potentially
dangerous circumstances.” Dormu, 795 F. Supp. 2d at 28 (quoting Etheredge, 635 A.2d at 916).
“This standard is similar to the excessive force standard applied in the Section 1983 context.” Id.
(quoting Rogala v. District of Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998)). The D.C. Circuit
has stated that, when evaluating a defendant’s motion for summary judgment on an excessive
force claim, the motion
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.
DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C. Cir. 1997); see also Egudu v. District
of Columbia, 72 F. Supp. 3d 34, 47–48 (D.D.C. 2014).
The Court agrees with the District that no reasonable jury could reach that conclusion
with respect to Count II. Taken in the light most favorable to Okpara, the evidence indicates that
Howard placed his hands on her arm and pant leg and “threw [her] up in there”—that is, into the
van. See Dkt. 27-1 at 10 (Okpara Depo. 147:12–13). A reasonable person could certainly be
10
angry and upset at this rough treatment, as the record reflects that Okpara was. See id. (Okpara
Depo. 149:1). And it is true that, unlike in many excessive force cases, the officers were not
using force while effecting an arrest. See Egudu, 72 F. Supp. 3d at 49. Nonetheless, the degree
of force employed—even accepting Okpara’s version of the events—was not enough to permit a
jury to conclude that “no reasonable officer could have believed in the lawfulness of his actions.”
DeGraff, 120 F.3d at 302. It is well short of the degree of force “previously found excessive in
this Circuit,” Egudu, 72 F. Supp. 3d at 49; see, e.g., Rudder v. Williams, 666 F.3d 790, 795 (D.C.
Cir. 2012) (beating a suspect to the ground with a baton); Johnson v. District of Columbia, 528
F.3d 969, 974–75 (D.C. Cir. 2008) (kicking a prone man in the groin), even accounting for the
fact that the officers were not effecting an arrest. Under Okpara’s version of the incident, she
was having difficulty getting into the van because her sugar level had dropped and she was
“feeling weak.” Dkt. 27-1 at 10 (Okpara Depo. 147:2–13). When she, as a result, failed to
follow Officer Howard’s admonition that she “better get up in the” van, he took her by the leg of
her pants and arm and “helped . . . thr[o]w [her] up” into the van. Id. Although not an exemplar
of care, such behavior is not the kind of conduct that no reasonable officer could believe was
lawful.
Accordingly, the Court will GRANT the District’s motion for summary judgment on
Count II.
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CONCLUSION
For these reasons, the Court will GRANT the District’s motion for summary judgment
with respect to Count II of Okpara’s complaint, but will DENY it with respect to Count I of the
complaint. A separate Order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 24, 2016
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