Buruca v. District of Columbia

• Decision Date: 06 November 2012
• Docket Number: Civil Action No. 10–1943 (RC).
• Citation: 902 F.Supp.2d 75
• Court: U.S. District Court — District of Columbia
• Parties: Maria BURUCA, proceeding individually: and on behalf of Salvador Buruca's estate, Plaintiff, v. DISTRICT OF COLUMBIA et al., Defendants.

902 F.Supp.2d 75

Maria BURUCA, proceeding individually: and on behalf of Salvador Buruca's estate, Plaintiff,

v.DISTRICT OF COLUMBIA et al., Defendants.

Civil Action No. 10–1943 (RC).

United States District Court, District of Columbia.

Nov. 6, 2012.

Marvin Liss, Marvin Liss, P.C., Washington, DC, Robert M. Somer, Hilton & Somer, LLC, Fairfax, VA, for Plaintiff.

Wayne C. Beyer, Office of Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

Granting the District of Columbia's Motion for Summary Judgment

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

This case stems from a shootout between officers employed by the Metropolitan Police Department and Salvador Buruca, who was killed in the melee. His next of kin brought suit, alleging that the officers used excessive force. Now before the court is the District of Columbia's motion to dismiss or, in the alternative, for summary judgment. In support of its motion, the District has put forward a good deal of evidence, including testimony from one of the officers who was involved in the incident, audio recordings of contemporaneous witnesses, and expert testimony. In response, the plaintiff submitted one single affidavit, which largely consists of inadmissible hearsay and statements made without personal knowledge. Because no reasonable jury could find in the plaintiff's favor, the court will grant the District's motion.

II. FACTUAL AND PROCEDURAL HISTORY

At approximately 3:46 a.m. on August 27, 2009, several individuals called 911 to report that a man was firing gunshots near a Shell gas station in Northeast Washington, D.C. Def.'s Mot., Ex. 1. One caller stated that the individual—later identified as Salvador Buruca—had fired shots into the air; another reported that Buruca had approached several cars and pointed his gun at the drivers. Id., Exs. 2–3. A Metropolitan Police Department (“MPD”) officer, Curt Bonney, was only a few blocks away when he received the radio dispatch call. Id., Ex. 5 at 45. When Officer Bonney arrived on the scene, he exited his cruiser and saw Buruca holding a gun. Id. at 52. Bonney ordered Buruca to drop the weapon, but Buruca instead raised his pistol and pointed it at the officer. Bonney fired several shots at Buruca, who died from the wounds. Id. at 58–59. Later tests confirmed that Buruca's firearm, a .22 caliber Gerstenberger & Eberwein revolver, had been fired four times. Id., Ex. 9. A toxicology report also revealed traces of PCP in Buruca's bloodstream. Id., Ex. 13.

Salvador Buruca's sister, Maria Buruca, filed suit individually and on behalf of her brother's estate. Her complaint names the District of Columbia, the MPD, and several unknown “John Doe” MPD officers as defendants. The complaint includes the following claims: Count I (42 U.S.C. § 1983 against John Doe police officers); Count II (42 U.S.C. § 1983 against the District of Columbia); Count III (assault, battery, negligence, and intentional infliction of emotional distress (“IIED”)); Count IV (wrongful death under D.C.Code § 16–2701); and Count V (Survival Act, D.C. Code § 12–101). The District now moves for summary judgment or dismissal on all counts.

III. ANALYSIS

A. The Court Will Dismiss All Claims Brought Against the Metropolitan Police Department or the “John Doe” Officers

The District argues that Metropolitan Police Department is non sui juris and cannot be sued. See Hunt v. District of Columbia, 2002 WL 1997987, at *1 (D.C.Cir. Aug. 29, 2002) (per curiam); Heenan v. Leo, 525 F.Supp.2d 110, 112 (D.D.C.2007). Second, the District asks the court to dismiss any claims brought against the “John Doe” defendants, because claims against fictitious defendants must be dismissed after the close of discovery. See Simmons v. District of Columbia, 750 F.Supp.2d 43, 45 (D.D.C.2011) (requiring the plaintiff to replace “John Doe” defendants with real defendants after the completion of discovery). The District is correct, and the plaintiff concedes as much by failing to oppose this portion of its motion.¹

B. Legal Standard for a Motion for Summary Judgment

Summary judgment may be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” if sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Id. at 323, 106 S.Ct. 2548;Fed.R.Civ.P. 56(c)(1)(A) (noting that the movant may cite to “depositions, documents, electronically stored information, affidavits or declarations, ... admissions, interrogatory answers, or other materials”). In response, the non-moving party must similarly designate specific facts in the record that reveal a genuine issue that is suitable for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

On a motion for summary judgment, the court must “eschew making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).

C. The Court Will Grant Summary Judgment on the Plaintiff's Common–Law Claims

“When an individual is shot by a District of Columbia police officer, and he or his successors in interest decide to bring a lawsuit, they may proceed under one or more different common law theories of legal liability.” Holder v. District of Columbia, 700 A.2d 738, 741–42 (D.C.1997). “For example, they may sue for the common law intentional torts of assault and battery.” Id.;District of Columbia v. White, 442 A.2d 159, 162–64 (D.C.1982); District of Columbia v. Downs, 357 A.2d 857, 859–60 (D.C.1976). A plaintiff may also pursue a claim under the theory of negligence. See District of Columbia v. Evans, 644 A.2d 1008, 1019–21 (D.C.1994); Etheredge v. District of Columbia, 635 A.2d 908, 917–18 (D.C.1993). A plaintiff may also claim that an officer's conduct constituted IIED. See McKnight v. District of Columbia, 412 F.Supp.2d 127, 136 (D.D.C.2006). In all cases, the District is vicariously liable for the intentional and negligent acts of officers acting within the scope of their employment. See White, 442 A.2d at 162 n. 7 (citing District of Columbia v. Davis, 386 A.2d 1195, 1202 (1978)).

i. Assault & Battery

An assault is “an intentional and unlawful attempt or threat, either by words or by acts, to do physical harm to the victim.” Rawlings v. District of Columbia, 820 F.Supp.2d 92, 107 (2011) (quoting Evans–Reid, 930 A.2d at 937). A battery is “an intentional act that causes a harmful or offensive bodily contact.” Id. For either claim, the plaintiff's prima facie case is readily demonstrated by the officer's intentional act of force. The defendant's liability turns on a separate question, however: whether the use of force was privileged. Rawlings, 820 F.Supp.2d at 107. As the D.C. Court of Appeals has explained:

A police officer has a qualified privilege to use 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. Moreover, any person, including an officer, is justified in using reasonable force to repel an actual assault, or if he reasonably believes he is in danger of bodily harm. Use of “deadly force,” however, is lawful only if the user actually and reasonably believes, at the time such force is used, that he or she (or a third person) is in imminent peril of death or serious bodily harm.

Etheredge, 635 A.2d at 916. The officer's judgment should be reviewed “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.” Rogala v. District of Columbia, 161 F.3d 44, 57 (D.C.Cir.1998).

It is unclear which party bears the burden of proving that the officer's use of force was privileged. This fact complicates the analysis somewhat. Ordinarily, a defendant who seeks summary judgment in a “run-of-the-mill civil case” can succeed simply by showing that the plaintiff lacks sufficient evidence to prove some portion of her prima facie claim. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. But “the inquiry involved in a ruling on a motion for summary judgment ... necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

The D.C. Court of Appeals has “specifically left open the question of who bears the burden on the privilege issue” in excessive force cases. See Kotsch v. District of Columbia, 924 A.2d 1040, 1047–50 (D.C.2007); District of Columbia v. Chinn, 839 A.2d 701, 706 n. 3 (D.C.2003). Thus, the District must overcome this uncertainty by showing that it would be entitled to summary judgment even if it was saddled with the burden of proof. See Evans–Reid v. District of Columbia, 930 A.2d 930, 939 (D.C.2007) (“We will assume, without deciding, that where a plaintiff establishes a prima facie case of assault and battery and the...