Feirson v. District of Columbia

• Decision Date: 30 October 2007
• Docket Number: No. 05-7188.,05-7188.
• Citation: 506 F.3d 1063
• Parties: Bruce FEIRSON and Mary Feirson, Appellants v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

506 F.3d 1063

Bruce FEIRSON and Mary Feirson, Appellants v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 05-7188.

United States Court of Appeals, District of Columbia Circuit.

Argued September 7, 2007.

Decided October 30, 2007.

Appeal from the United States District Court for the District of Columbia (No. 01cv00905).

Fred T. Magaziner, pro hac vice, argued the cause for appellants. On the briefs were Frank J. Eisenhart, Barrie A. Dnistrian, and Christian A. Natiello.

David A. Hyden, Assistant Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellee District of Columbia. With him on the brief were Linda J. Singer, Attorney General, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General.

Thomas M. Hogan argued the cause and filed the brief for appellee Michelle Smith-Jefferies, M.D., Taunya Brownlee, M.D., and Craig Thorne, M.D.

Before: RANDOLPH and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

BROWN, Circuit Judge:

Bruce Feirson, now a retired Metropolitan Police Department (MPD) officer, sustained serious neck and lower back injuries during an "attack exercise" — part of a MPD training program. Feirson and his wife, Mary, sued the District of Columbia and three physicians who worked at the District's Police and Fire Clinic. Feirson asserted claims under 42 U.S.C. § 1983 and District of Columbia law. Mary sought compensation for loss of consortium. In separate orders, the district court granted summary judgment for the District and the three physicians on all of the Feirsons' claims. The Feirsons now appeal. We affirm the district court's various grants of summary judgment.

I

Viewed in the light most favorable to Feirson, the facts are as follows. Feirson had a history of back problems dating back to 1979. His problems first became serious in 1985 when he twisted his lower back while chasing a suspect. Feirson underwent spinal surgery and returned to full duty several months later. The following year he felt a snap in his back while entering his car, and he again underwent spinal surgery. From mid-1986 to mid-1988 it was medically uncertain whether Feirson could function as a police officer. But in June 1988, Feirson returned to full duty when the District's Board of Police and Fire Surgeons determined he could perform without restrictions.

In 1999, the MPD required its officers to be certified to use a new retractable baton made by Armament Systems & Procedures, Inc. The baton, which MPD officers referred to as the "ASP," replaced the traditional "nightstick." The MPD included ASP certification training in its regular annual in-service training program.

ASP training had three parts: two to three hours of classroom instruction; two to three hours of physical conditioning exercises, including drills on various strikes and deflection moves; and a 90- to 120-second "attack exercise." To successfully complete the attack exercise, the trainee had to use a foam-covered version of the ASP to fend off an instructor pretending to be a violent suspect. The trainee wore protective headgear and a mouthpiece while his "attacker" wore a padded "hit suit" to absorb the blows the trainee delivered with the ASP. The attacker's hands and feet were also padded. The exercise took place on mats and within a ring formed by other trainees who carried padded shields. The exercise was designed to simulate a "code orange" situation—one level below a situation in which an officer would be authorized to use deadly force. The attacker charged toward the trainee aggressively, using pulled punches and kicks, and grabbing, wrestling, or throwing the trainee.

In April 2000, Feirson's supervisor ordered him to attend annual in-service training. Concerned about his back after hearing rumors that officers were being "beaten and assaulted" during ASP training, Feirson asked his supervisor if he could reschedule or avoid going altogether. Feirson's supervisor, apparently unmoved by his concerns, handed him a written order to attend. After all, annual in-service training was required for MPD officers, and Feirson had been deemed fit for full duty after undergoing a medical examination two months earlier.

Feirson participated in ASP training on April 27, 2000. Already winded from the preceding exercises, he tried to fake his way through the attack exercise portion. First he tried to clutch his attacker until the time ran out. By closing the distance, Feirson thought he could muffle the attacker's punches and kicks. The instructor timing the exercise foiled this plan, however, when he stopped the clock, separated Feirson and his attacker, told Feirson to swing the ASP more, and then restarted the exercise. Next Feirson tried, in his words, to "get back on the rope." He hoped to hide near the edge of the ring, but his comrades shoved him back in when he came too close to their shields. Meanwhile, the attacker pursued him, continuing to throw punches and kicks. During the fray, the attacker struck Feirson in the face, causing his head to jerk backward.

This entire episode lasted over a minute, but less than two. It ended when the attacker, recognizing Feirson "had enough," stopped the exercise. Feirson felt some soreness and numbness, but he did not report his symptoms to the Police and Fire Clinic until the next day. As it turns out, Feirson suffered serious neck and lower back injuries, requiring him to undergo spinal surgery. Feirson became eligible for disability retirement because of his injuries, and he subsequently retired.

Feirson and his wife sued the District and thirteen physicians who staffed the Police and Fire Clinic, including Doctors Michelle Smith-Jefferies, Taunya Brownlee, and Craig Thorne (the "Physician Defendants"). The Physician Defendants worked for PFC Associates, Inc., a private corporation that operates the Police and Fire Clinic under a contract with the District. The Feirsons never served process on the other ten physicians, whom the Feirsons named "John and Jane Does, nos. 1-10."

The district court granted summary judgment for the District on Feirson's § 1983 claims, concluding that his constitutional rights were not violated. Feirson v. District of Columbia, 315 F.Supp.2d 52 (D.D.C.2004). Subsequently, the court granted summary judgment for the Physician Defendants. Feirson v. District of Columbia, 362 F.Supp.2d 244 (D.D.C. 2005). The court dismissed Feirson's § 1983 claims, relying on its earlier conclusion that his constitutional rights were not violated. Id. at 247. Moreover, finding no evidence of extreme or outrageous conduct, and no duty on the part of the Physician Defendants to protect Feirson, the court dismissed his intentional infliction of emotional distress (IIED) and negligence claims. Id. at 247-50. Because the Physician Defendants were not liable to Feirson, the court dismissed Mary's loss of consortium claims. Id. at 254.

Finally, the district court granted summary judgment for the District on the Feirsons' remaining claims. Feirson v. District of Columbia, No. 01-0905, 2005 WL 3211626 (D.D.C. Nov.22, 2005). The court concluded that the Police and Firefighters' Retirement and Disability Act (PFRDA), D.C. CODE §§ 5-701 et seq. (2001), was Feirson's exclusive remedy against the District.

II

We review a district court's grant of summary judgment de novo. Summary judgment is appropriate when the pleadings and the evidence demonstrate 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." FED.R.CIV.P. 56(c). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

A

To impose liability on the District under 42 U.S.C. § 1983, Feirson must show "not only a violation of his rights under the Constitution or federal law, but also that the [District's] custom or policy caused the violation." Warren v. District of Columbia, 353 F.3d 36, 38 (D.C.Cir.2004). Feirson claims his substantive due process rights were violated when the instructor, acting under MPD orders, attacked him "with a level of force that exceeded any legitimate `training' objective." He also claims he was twice "seized" in violation of the Fourth Amendment. The first alleged seizure occurred when his supervisor ordered him to attend the annual in-service training; the second occurred during the attack exercise itself.

The district court concluded, and we agree, that Feirson's substantive due process rights were not violated. "[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Most likely to rise to that level is "conduct intended to injure in some way unjustifiable by any government interest." Id. at 849, 118 S.Ct. 1708. Although "negligently inflicted harm is categorically beneath the threshold," whether recklessness or gross negligence will suffice "is a matter for closer calls." Id.

Feirson cites three assertions that his attacker applied excessive force. The first is his own: "That was the most serious assault I've ever encountered in . . . over 20 years on the police department." The second is from his training expert: "[T]he speed, intensity and level of force . . . was grossly excessive, without justification and outside the scope of reasonable and effective training...