Lyles v. Hughes

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAMELA LYLES,

Plaintiff,

v.

Civil Case No. 13`-0862 (RJL)

UNITED STATES MARSHALLS

SERVICE, et al.,

FILED

MAR 1 9 2018

4b Clerk, U.S. District & Bankruptcy

MEMORANDUM OPINION Courts forthe Districtof Co|umbla

March[ g 2018 [Dkt. # 40]

This matter is before the Court on Defendants’ Motion to Dismiss and for Summary

Defendant.

Judgment [Dkt. # 40], filed on behalf of Defendants Michael Hughes and Jeremy Alford.

For the reasons that follow, the Court GRANTS the motion.

BACKGROUND

I. Procedural History

PlaintiffPamela Lyles (“plaintiff”) alleges that Defendants Michael Hughes, United

States Marshal for the Superior Court of the District of Columbia (“Hughes”), and Jeremy

Alford, Sup'ervisory Deputy United States Marshal for the Superior Court of the District of

Columbia (“Alford”), in their individual capacities, violated rights protected by the Fourth

Amendment to the United States Constitution in the course of evicting her from her former

residence on April 20, 2012. This matter is before the Court on remand from the United

States Court of Appeals for the District of Columbia Circuit “for further proceedings With

l

respect to [plaintiff’s] claims under Bl'vens v. Sl`x Unknown Named Agents of the Fea’.

Bureau of Narcoz‘z`cs, 403 U.S. 388 (1971), against [defendants] Hughes and Alford.” Lyles

v. Hughes, No. 15-5106 (D.C. Cir. June 24, 2016).' According to the D.C. Circuit, when

this Court ruled on defendants’ motion to dismiss, it “applied too exacting a standard” and

failed to “construe the facts in the light most favorable to the [plaintiff], the nonmoving

party.” Ia’. Hughes and Alford move for summary judgment on plaintiffs Bivens claims.

Because defendants have submitted and the Court has considered four declarations,

the Court treats their motion as one for summary judgment See Fed. R. Civ. P. lZ(d) (“If,

on a motion under Rule lZ(b)(6) . . . , matters outside the pleadings are presented to and

not excluded by the court, the motion must be treated as one for summary judgment

under Rule 56.”). On March 3l, 2017, pursuant to Neal v. Kelly, 963 F.2d 453, 456 (D.C.

Cir. 1992), l issued an Order advising plaintiff of her obligations under the Federal Rules

of Civil Procedure and the Local Civil Rules of this Court to respond to defendants’ motion.

[Dkt. # 42]. Specifically, the Order advised plaintiff that the Court Would accept as true

defendants’ assertions of fact unless plaintiff submitted affidavits or documentary evidence

showing that defendants’ assertions are untrue. Plaintiff filed her opposition on May 8,

2017. See Pl.’s Response to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) [Dkt. # 44].

II. Execution of Writs of Restitution

‘ The D.C. Circuit previously affirmed this Court’s disposition of plaintiffs other claims,

including all ofthose against the U.S. l\/Iarshalls Service. See Lyles v. Hughes, No. 15-5106, 2015

WL 9007382 (D.C. Cir. Oct. 30, 2015) (per curiam).

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The Superior Court of the District of Columbia (“Superior Court”), Civil Division,

Landlord and Tenant Branch (“L&T Court”), issues writs of restitution (evictions). l\/lem.

of P. & A. in Support of Defs.’ Mot. to Dismiss and for Summ. J. (“Defs.’ Mem.”), Ex. A

(“Coleman Decl.”) jjjj 7-8 [Dkt. # 4lj. Once the judge approves a writ, the writ is filed,

and an L&T Court clerk delivers the writ to the United States Marshals Service, Superior

Court, District of Columbia (“USMS”) for execution. Id. jj 8.

A writ is valid for 75 calendar days. Id. jj 8. The USMS stamps each writ with the

earliest date (four days after its issuance, excluding Sundays and holidays) and latest date

(75 calendar days after its issuance) on which the writ can be executed ld. jj 9. lf a writ

has been reissued by the L&T Court because it had expired, it is called an alias writ. Ia’. jj

lO. An alias writ takes priority, and it will be executed before all other writs. Ia’. The writ

for plaintiffs eviction was an alias writ. Defs.’ Mem., Ex. C (“Alford Decl.”) j 8.

A Deputy United States Marshal (“DUSl\/[”) does not determine the appropriateness

of evicting a tenant. Id. jj 9. He is assigned to a team that “merely execute[sj the order of

the [L&Tj Court by assuring the peaceful repossession by the landlord.” Id.; see also Defs.’

l\/lem., Ex. B (“Hunt Decl.”) jj lO.

A Deputy in Charge (“DIC”) performs administrative functions regarding evictions.

Coleman Decl. jj 5. Among other duties, the DIC is responsible for compiling lists of

evictions and scheduling evictions upon receipt of writs from the L&T Court. Ia’. Evictions

are scheduled by date and by quadrant ofthe city. Ia’. jj lO. The DlC “assigns a sequential

number and a time to each eviction,” and “[ojnce a schedule is established, an eviction list

is produced and provided to the Superior Court Dispatcher, and . . . to the L&T Court.” Id.

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jj ll. However, “[djepending upon the circumstance of any given day, evictions may be

done in a different order.” Alford Decl. jj 9.

A team of three or four DUSMS is assigned to execute the writs and to complete and

return paperwork. Coleman Decl. jj 12; Alford Decl. jj 9; Hunt Decl. jj 6. Each team has a

team leader. Coleman Decl. jj 12. United States Marshal Michael Hughes does not execute

writs, is not a member of any eviction team, and does not supervise directly the DUSMs

assigned to the writs section of the office. Coleman Decl. jj 12; Hunt Decl. jj 15; Alford

Decl. jj 20; Defs.’ l\/Iem., Ex. D (“Hughes Decl.”) jjjj 5-7. lt is the landlord’s responsibility

to “hav[ej the necessary means for accomplishing evictions, i.e., ensuring entry can be

made in a reasonable time, and hiring an eviction crew with the required number of

workers.” Alford Decl. jj 6. DUSMs are not responsible for moving a tenant’s property.

Id.

DUSM Coleman explains a typical eviction as follows:

13. Upon arrival at [aj residence, the DUSMs meet with the

landlord and have him/her sign a waiver of liability on the back

of the writ, and notify the dispatch. The team knocks and

announces, and notifies the dweller that [it isj conducting an

eviction. The deputies then enter the building (generally with

weapons at the ready) to make a deliberate search of persons

for items that may be of danger, clear the residence and explain

the process to the occupants

l4. After the search, if the occupants are being cooperative,

they are allowed a brief time to gather items such as money,

jewelry, medication, keys, phones, and documents. However,

there is no right to reenter the [residencej, and disruptive or

belligerent occupants are not allowed to return into the

residence [jfor the safety of everyone on the scene. Occupants

are then directed to exit the property and to wait outside . . . .

The movers are then allowed to enter the dwelling to move out

the property.

l5. When all appropriate property has been removed from the

dwelling and placed in the public space, the DUSMij will turn

the premises over to the landlord, and the landlord will sign the

writ and acknowledge receipt of the premises. lf adversarial

circumstances exist, the DUSMs should remain while the

landlord secures the premises to ensure that the situation does

not become dangerous

16. At the completion of the day, all writs, regardless of

disposition, will be turned [in toj the Process Control Section

for return to the L&T Court.

Id. jjjj 13-16.

Il. Defendants’ Assertions of Fact

DUSM Coleman has reviewed USl\/[S records pertaining to plaintiffs eviction. See

Coleman Decl. jjjj 17-20. He attached to his declaration “a copy of the front and back of

the Writ of Restitution executed and maintained by the USMS on April 20, 2012 for

[Pamelaj Lyles.” Id. jj 17; see also id., Attach. A. The writ bore two date stamps, April

18, 2012 and June 27, 2012, reflecting the earliest and latest dates on which it could have

been executed Id. jj 17. Handwritten notations in the upper right corner on the front of

the writ indicated that plaintiffs was the eleventh eviction of the day and was scheduled to

occur at approximately 3100 p.m. Ia’. “The writ [was] directed to the United States Marshal

for Superior Court, i.e., Michael Hughes.” Id. The return bore the landlord’s signature,

and a handwritten notation indicated that the eviction “was 85% executed because of

bedbugs.” Icz’.2 The four-man team of DUSMs consisted of Jeremy Alford, l\/laurice

2 DUSM Coleman explains that, “[tjypically, upon discovery of bedbugs, the eviction is halted

based on health and safety concerns for the deputies and movers.” Coleman Decl. jj l7.

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Shanks, Frank Tyler, and Todd Hunt. Ia’. United States Marshal Hughes neither

“participate[dj in executing the Writ of Restitution against [pjlaintiff on April 20, 2012,”

nor was “present at the property that was the subject of the Writ of Restitution at any time

on April 20, 2012.” Hughes Decl. jj 7; see also Alford Decl. jjj 8, 20; Hunt Decl. jjjj 6~7,

l5.

According to DUSM Coleman, the USl\/IS’s radio log indicates “that the eviction

team arrived at [pjlaintiff`s residence at 12:23[ p.m.j,” the time DUSM Alford (735) called

in to the dispatcher. Coleman Decl. jj 18; see id., Attach. B. ln addition, the radio log

reflects that DUSM Shanks (756) called the dispatcher at 12127 p.m. to request the

assistance ofthe l\/letropolitan Police Department (“l\/IPD”) based on the landlord’s request

that plaintiff be barred from the premises. Ia’. A subsequent entry on the radio log indicates

that DUSM Shanks called the dispatcher again at 12:31 p.m. to determine whether the

eviction had been stayed. Ia’. jj 19. DUSM explains that, “[ajfter conferring with the L&T

[Courtj, the [djispatcher reported that Tiffany l\/loore of the L&T Court confirmed that the

eviction was ‘a go’ as reflected in” a radio log entry at 12:34 p.m. Icl. Other log entries

indicate that MPD did not take plaintiff into custody, that the eviction had been 85%

complete due to the bedbugs, that property remained inside the residence, and that the

residence had one occupant. Ia'. jj 20.

DUSM Alford describes the eviction as follows:

10. We arrived at Plaintiff`s former apartment at 2435 Ainger

Place, S.E., #Bl, Washington, DC 20020, near 12:23 p.m. on

April 20, 2012.

ll. . . . l believe the entire team of four entered the apartment

Plaintiff occupied to clear the dwelling. At some point Plaintiff

was allowed to retrieve/change clothes and retrieve property .

12. After Plaintiff was escorted (led out of the apartment), two

deputies, l believe DUSMs Shanks and Tyler, returned to finish

clearing the apartment for the movers l\/lyself and DUSM

Todd Hunt remained outside on the landing with Plaintiff, just

outside the entrance to her apartment.

13. Plaintiff was arguing/yelling and struggling to reenter the

apartment. She was kicking me [andj DUSM Hunt. DUSM

Hunt and l tried to explain to Plaintiff that she could not reenter

the apartment, but she would not listen and continued to

attempt to bypass me to reenter the apartment. lnitially, l

merely tried to block Plaintiff` s reentry, but then she had to be

placed in restraints because she continued to struggle to get

past us l placed the restraints on her to protect her from injury

and to reduce the need to maintain physical control by placing

my hands on her. She continued to struggle, yell, and kick, and

we eventually placed her on the ground and placed leg

restraints on her to attempt to prevent further kicking. Plaintiff

continued to try to kick once restrained She continued to move

about outside while restrained

14. As Plaintiff was evicted, she was not allowed to reenter the

apartment . . . . [T]o keep Plaintiff from reentering the

apartment, hurting herself, and assaulting officers, she was

restrained with handcuffs and leg restraints

l5. l used minimal force to accomplish the objective of

precluding Plaintiff from further interference with our

enforcement of a court order, and the use of restraints was in

response to Plaintist disruptive conduct . . . .

Alford Decl._ jjjj 13-15. According to DUSM Alford, neither he nor any of the other team

members kicked Plaintiff or struck her in her head. Icl. jj 18. He was not aware of any

injuries plaintiff sustained, and had she “complained of injuries, medical attention would

have been sought.” Ia’. United States Marshal Hughes “was not present during the

execution of this writ, and to [Alford’sj knowledge has never participated in the execution

ofa writ while the U.S. l\/larshal.” Ial. jj 20.

DUSM Hunt was a member of the four-deputy team assigned to execute the writ on

plaintiff on April 20, 2012 at her former apartment at 2435 Ainger Place, S.E., #Bl,

Washington, DC 20020. Hunt Decl. jjjj 3-7. He was not the team leader. Icl. jj 8. Hunt

described the events as follows:

8. l recall first interacting with Plaintiff at the entrance to her

apartment or the landing area, while . . . DUSl\/ls Shanks and

Tyler entered the apartment to clear it. Plaintiff was arguing

and yelling and was kicking DUSM Alford and me as she tried

to reenter the apartment We tried to explain to Plaintiff that

she could not reenter the apartment, but she continued to try to

reenter. Because of Plaintiff’s struggling to reenter the

apartment, she was handcuffed, but she continued to kick at us

and struggle At some point, a deputy (l believe Frank Tyler)

retrieved leg restraints and we placed them on Plaintiff.

However, she continued struggling and trying to kick. We sat

Plaintiff on the steps to try to keep her from continuing to go

back in the apartment and struggle with us

9. As Plaintiff was being evicted, she was not allowed to

reenter the apartment Also as a matter of officer safety, as

well as to effectuate the Writ, tenants are not allowed to reenter

the apartment once removed, particularly when they are being

disruptive. Accordingly, to keep Plaintiff from reentering the

apartment and from assaulting officers, she was restrained with

handcuffs and leg restraints

Ia’. jjjj 8-9. According to DUSM Hunt, neither he nor any of the other DUSMs kicked or

struck plaintiff; they “restrained [herj to prevent her from reentering the residence, and to

prevent injury to her or deputies based upon her conduct.” Ia’. jj l2. He was not aware that

plaintiff suffered any injuries Ia'. jj 13. DUSM Hunt recalled that MPD officers arrived

on the scene, icl. jj l l, and that Michael Hughes was not present at this or any other eviction

in which Hunt had participated, z`a’. jj l5.

III. Plaintiff’s Allegations of Fact

The Court previously summarized plaintiffs factual allegations as follows:

“In the early morning of April 20, 2012, two armed U.S.

Marshals and the landlord entered the Plaintiffs apartment and

informed her that she was being evicted on the spot.” Am.

Compl. jj 10. Plaintiff claimed “that she had never received

notice of a default judgment and informed [the Marshalsj that

. . . she was an attorney . . . who would never fail to respond to

a notice of an eviction hearing.” [Ia’.j jj 12. Nevertheless,

defendants allegedly “move[dj toward the plaintiff in a

threatening manner when the [p]laintiff demanded to see . . .

evidence that she had received notice of an eviction.” [Ia’.j jj

13. They refused plaintiffs offer to pay the amount the

landlord claimed was due, [z`cl.j jj 16, refused her request “to . .

. postpone the eviction so that she could get to the courthouse

to nullify the default order,” icl. jj 18, and refused her request

for “time to arrange for someone [toj move her possessions

out,” lol. jj 19. Further, because plaintiff “was moving too

slowly,” [l`cl.j jj 22, defendants allegedly “grabbed both [of

plaintiff sj arms and dragged her through the apartment and

pushed her out of the door,” ia’. jj 22. They allegedly “pushed

[plaintiffj so hard that she landed on the floor [in frontj of the

door of the apartment across the hallway.” [Ia’.j jj 22. When

plaintiff attempted to “go back into [herj apartment to get her

purse, phone, and money, [theyj stopped her by handcuffing

her arms behind her back,” [z`a’.j jj 23, knocked her to the floor,

forced her to lie face down on the floor, and shackled her feet,

id. jj 24. “Plaintiff struggled while lying on the floor, . . . cried

out in pain and screamed to the witnesses” who were observing

the events, and was “kicked on the right part of her forehead

causing blood to flow” by one of the defendants after he “told

her to shut up and . . . she did not” [Ia’.j jj 25.

According to plaintiff, “[tjhe Marshals carried only a few items

outside and fled as soon [asj the landlord had the locks

changed,” [z`a’.j jj 26, leaving “nearly all of [plaintiffsj

possessions including the safe which they knew contained

money and jewelry in the hands of the landlord who slammed

the door shut and told the Plaintiff to get out,” z'a’. jj 27.

According to plaintiff, she “was so distraught that she suffered

a gran mal seizure on the spot and was rushed to the emergency

room [of a hospitan by her neighbors and was subsequently

hospitalized.” [Ia’.j jj 28.

Lyles v. U.S. MarSl/zals Serv., 83 F. Supp. 3d 315, 318-20 (D.D.C. 2015), ajj"a’ in part ana’

vacated in part, No. l5-5106 (D.C. Cir. June 24, 2016) (per curiam).

LEGAL STANDARD

The moving party is entitled to summary judgment when the pleadings, discovery

and disclosure materials on file, and any affidavits show that there is “no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” F ed R.

Civ. P. 56(a). A fact is “material” if it “may affect the outcome of the

litigation.” Montgomery v. Rl`sen, 875 F.3d 709, 713 (D.C. Cir. 2017); see Ana’erson v.

Ll`berty Lol)by, lnc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). A dispute is “genuine” if “the evidence is such that-a reasonable

jury could return a verdict for the nonmoving party.” Ana’erson, 477 U.S. at 248.

The movant bears the initial burden of identifying evidence that demonstrates that

there is no genuine dispute of material fact See Celoz‘ex Corp. v. Catrett, 477 U.S. 317,

323 (1986). A movant can satisfy that burden by “citing to particular parts of materials in

the record,” or by “showing that the materials cited do not establish” the “presence of a

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genuine dispute.” Fed. R. Civ. P. 56(0). When evaluating a summaryjudgment motion,

the Court must “examine the facts in the record and all reasonable inferences derived

therefrom in a light most favorable to the nonmoving party.” Rol)z`nson v. Pezzat, 818 F .3d

1, 8 (D.C. Cir. 2016) (internal quotation marks omitted). “lndeed, the summary judgment

standard requires [the Courtj to credit the [non-moving party’sj version of events, even if

‘directly contradictory’ to other testimony.” Id. (quoting Tolan v. Coz‘l‘on, 134 S. Ct. 1861,

1867 (2014) (per curiam)). The Court “may not resolve genuine disputes of fact in favor

ofthe party seeking summary judgment.” Tolan, 134 S. Ct. at 1866.

If the party moving for summary judgment meets its initial burden, then the

nonmoving party_the plaintiff in this case_must identify the “specific facts showing that

there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation marks

omitted). She “may not rest upon mere allegation or denials of [herj pleading.” Anclerson,

477 U.S. at 256. lf the nonmoving party fails to proffer evidence to support her assertions,

then the moving party may prevail by citing that “failure of proof.” Celotex, 477 U.S. at

323.

DISCUSSION

I. U.S. Marshal Hughes

ln Bz‘vens, the Supreme Court “recognized for the first time an implied private action

for damages against federal officers alleged to have violated a citizen’s constitutional

rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 66 (2001)). Such an “implied cause of action is the “federal analog

to suits brought against state officials under . . . 42 U.S.C. § 1983.” Ia'. at 675-76 (citations

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and internal quotation marks omitted). lt is an action against the federal official in his

individual capacity, not his official capacity. See Sl`mpkins v. District ofColambia Gov’t,

108 F.3d 366, 368 (D.C. Cir. 1997). lf “the Bl`vens defendant is found liable, he becomes

personally responsible for satisfying thejudgment[.j” Ia’. at 369. But he only can be found

liable for his own actions, not the unconstitutional acts of a subordinate under a theory of

respondeat saperz`or. See Iqbal, 556 U.S. at 676; see also Ziglar v. Abbasz`, 137 S. Ct. 1843,

1860 (2017) (“[Aj Bz`vens claim is brought against the individual official for his . . . own

acts, not the acts of others”); Tarpley v. Greene, 684 F.2d l, 10 (D.C. Cir. 1982)

(“Respondeat superior liability was not in issue in Bl`vens, and nothing in Bz`vens suggests

that respondeat superior liability must be available in actions brought directly under the

Constitution.”).

Hughes moves for summary judgment on the ground that plaintiff fails to

demonstrate his personal involvement in the April 20, 2012 eviction from her former

residence. He avers that he was not present at and did not participate in the eviction. See

Hughes Decl. jj 7 . DUSMs Hunt and Alford corroborate Hughes’ assertion. See Hunt

Decl. jj 15; Alford Decl. jj 20.

Plaintiff s insistence that Hughes must have participated personally in her eviction,

see Pl.’s Response to Defs.’ Mot. for Summary Judgment, at 1, 7, 10 [Dkt. # 44], appears

to stem from a misreading of the writ of restitution and its return. The L&T Court issues

the writ of restitution and commands the United States Marshal “to cause the [landlordj to

have possession ofthe premises” occupied by a tenant Coleman Decl., Ex. A (alias writ).

Hughes’ title appears on the writ in the heading which reads: “The President of the United

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States to the Marshalfor said District of Columbia.” See z`cl., Ex. A (emphasis added).

There are blank lines on the reverse side of the writ in which to fill the date of its execution

and the names of the deputies, acting on behalf of the U.S. l\/larshal, who executed the writ

What plaintiff treats as Hughes’ signature appears to be Hughes’ handwritten name along

with the names of the DUSMs on the execution team. The fact that Hughes’ name and title

appear on the writ does not establish that Hughes was present during or participated in

plaintiffs eviction on April 20, 2012.

lt is plaintiffs burden as the non-moving party on Summary judgment to proffer

evidence to support her assertion of Hughes’ personal involvement in the eviction. lnstead,

plaintiff rests on the allegations of her amended complaint and unsupported assertions that

the appearance of Hughes’ title and name on the writ proves that Hughes himself was

present for and participated in the eviction, and the alleged constitutional violations

occurring at that time. Plaintiffs claim against Hughes fails because she has not

demonstrated Hughes’ personal involvement in the alleged unconstitutional activity.

Therefore, the Court grants summary judgment in Hughes’ favor.

II. Deputy U.S. Marshal Alford

“While carrying out their official duties, federal officials enjoy qualified immunity

from damages suits in order to ‘shield them from undue interference with their duties and

from potentially disabling threats ofliability.”’ Jol/mson v. District ofColumbia, 734 F.3d

1194, 1201 (D.C. Cir. 2013) (quoting Harlow v. Fz'tzgerala’, 457 U.S. 800, 807 (1982)).

“[qualified immunity protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights

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of which a reasonable person would have known.”’ Pearson v. Callahan, 555 U.S. 223,

231 (2009) (quoting Harlow, 457 U.S. at 818). lts “protection . . . applies regardless of

whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake

based on mixed questions of law and fact”’ la’. at 231 (citations and internal quotation

marks omitted).

DUSM Alford moves for summary judgment on the ground that qualified immunity

protects him from suit. See generally Defs.’ l\/lem. at 12-17. The Court undertakes a two-

part analysis when considering a qualified immunity defense. lt must determine whether

the government official violated (i) a clearly established constitutional right that (ii) was

clearly established at the time ofthe alleged violation. See Saucz'er v. Katz, 533 U.S. 194,

200-01 (2001). The Court “may address the two stages of the qualified immunity analysis

in either order.” Johnson, 734 F.3d at 1202 (citing Pearson, 555 U.S. at 236).

The constitutional right at issue in this case is a person’s right to be free from

unreasonable seizure, and there is no dispute that this right was clearly established on April

20, 2012, the date of`plaintiffs eviction. Nor is there any dispute that DUSM Alford used

force to subdue and restrain plaintiff while the eviction team executed the writ of

restitution. See Am. Compl. jjjj 20-25; Alford Decl. jjjj 13-15; Hunt Decl. jjjj 8-9.

Plaintiff s “claim[j that law enforcement officers have used excessive force_

deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen [is] analyzed under the Fourth Amendment and its ‘reasonableness’ standard[.j”

Graham v. Connor, 490 U.S. 386, 395 (1989) (internal quotation marks omitted). What is

reasonable for purposes of the Fourth Amendment “is not capable of precise definition or

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mechanical application.” Bell v. Wolfislz, 441 U.S. 520, 559 (1979). Rather, “its proper

application requires careful attention to the facts and circumstances of each particular case,

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 [shej is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The ‘reasonableness’ of

a particular use of force must bejudged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. (citation omitted). And the

Court must take into account “the fact that [law enforcementj 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.” [al. at 397.

The test is an objective one. “The underlying intent or motivation of the officer is not

considered; the only issue is whether the officer’s actions are ‘objectively reasonable’ in

light ofthe facts and circumstances confronting him.” Rogala v. District ofColum/Jz`a, 161

F.3d 44, 54 (D.C. Cir. 1998) (internal citation omitted).

The Court first asks whether, “[tjaken in the light most favorable to the party

asserting the injury, . . . the facts alleged “show the officer’S conduct violated a

constitutional right.” Saucz`er, 533 U.S. at 201. Defendants demonstrate the existence of a

valid writ of restitution issued by the L&T Court, and their efforts to verify that plaintiffs

eviction should have proceeded as scheduled on April 20, 2012, a date well within the 75-

day period the USMS could have executed it. Their supporting declarations show that

plaintiff cooperated initially, and was allowed to retrieve some property and to change

clothes Only after she was escorted out of the apartment did she begin to argue with and

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yell at the DUSMs ln addition, DUSMs Alford and Hunt aver that plaintiff attempted to

reenter the apartment even after they told her she could not; so persistent was she that

DUSM Alford could not simply block plaintiffs reentry. According to DUSM Alford,

plaintiff “continued to attempt to bypass” him and DUSM Hunt, and that they placed her

in restraints “to protect her from injury and to reduce the need to maintain physical control

by placing [hisj hands on her.” Alford Decl. jj 13. And even after she was handcuffed,

plaintiff continued to struggle, yell, and kick DUSMs Alford and Hunt, prompting the

DUSMs to place her on the ground in leg restraints “to prevent further kicking,” z'cl., “to

keep [pjlaintiff from reentering the apartment and [to keep plaintiffj from assaulting

officers,” Hunt Decl. jj 9. Yet plaintiff persisted, and continued kicking even after she had

been placed in leg restraints Alford Decl. jj 13; Hunt Decl. jj 8.

On summary judgment, it is plaintiffs obligation as the non-moving party “to

provide evidence that would permit a reasonable jury to find [in her favorj.” Laningham

v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). She “can no longer rest on the

pleadings . . . and the court looks to the evidence before it (in the light most favorable to

the plaintiff) when conducting [itsj inquiry.” Behrens v. Pelletl`er, 516 U.S. 299, 309

(1996). Plaintiff fails to identify specific facts in the record showing that there is a genuine

issue for trial, and instead offers only her own allegations or denials, without supporting

affidavits, declarations, or other competent evidence, as is expected in opposition to a

motion for summaryjudgment See Fed. R. Civ. P. 56(e); Moseley v. Kz`ng, 197 F. Supp.

3d 210, 219 (D.D.C. 2016) (concluding that plaintiffwho “offered no evidence_other than

the mere allegation in her complaint_to refute defendant’S claim that she failed to contact

16

the agency’s EEO counselor on time” did not create genuine issue of material fact for trial

(emphasis in original)).

Based on the record of this case, the Court concludes that DUSM Alford did not

violate plaintiffs Fourth Amendment rights and, therefore, he is protected by qualified

immunity. DUSM Alford is a law enforcement officer whose right to arrest a person

“necessarily carries with it the right to use some degree of physical coercion or threat

thereof to effect it.” Graham, 490 U.S. at 396. He and the eviction team arrived at

plaintiffs former residence for the purpose of executing a valid writ of restitution, and

notwithstanding plaintiffs cooperation early in the encounter, were faced with a yelling,

arguing, kicking, and otherwise disruptive tenant The Court concludes that DUSM

Alford’s use of force-physically blocking plaintiffs reentry into the apartment,

handcuffing her, and placing her in leg restraints~was reasonable under the circumstances

See, e.g., Warcllaw v. Pz'ckett, 1 F.3d 1297, 1303-04 (D.C. Cir. 1993); Armbruster v. Frost,

962 F. Supp. 2d 105, 113-14 (D.D.C. 2013).

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CONCLUSION

Plaintiff neither demonstrates that United States Marshal Michael Hughes

personally was involved in the events giving rise to her Fourth Amendment claims, nor

demonstrates that Deputy United States Marshal Jeremy Alford used excessive force in

violation of plaintiffs Fourth Amendment rights Therefore, the Court GRANTS

Defendants’ Motion for Summary Judgment [Dkt. # 40]. A separate order consistent with

this opinion will be issued this day.

RICHA EON

United States District Judge

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