Fenwick v. United States

• Decision Date: 01 March 2013
• Docket Number: Civil Action No. 07–2330 (PLF).
• Citation: 926 F.Supp.2d 201
• Parties: Michael FENWICK, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

926 F.Supp.2d 201

Michael FENWICK, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 07–2330 (PLF).

United States District Court,

District of Columbia.

March 1, 2013.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Before the Court is the defendants' motion to dismiss or, in the alternative, for summary judgment. In an earlier Opinion and Order, the Court granted in part the defendants' motion to dismiss. The Court deferred ruling on the motion for summary judgment, ordering supplemental briefs and exhibits regarding the potentially preclusive effect on this action of the plaintiff's juvenile delinquency adjudication in the Superior Court of the District of Columbia. See Fenwick v. United States, 691 F.Supp.2d 108 (D.D.C.2010). Having carefully considered the parties' original and supplemental briefing, their exhibits, and the applicable law, the Court will grant in part and deny in part the defendants' motion. The bulk of the plaintiff's claims remain intact.¹

I. BACKGROUND

This action arises from an incident in which two Deputy United States Marshals shot and seriously injured the plaintiff, Michael Fenwick—then sixteen years old—as he drove out of a parking lot and failed to heed their orders to stop and speak with them about their suspicions that the vehicle he was driving was stolen.

On January 3, 2007, Mr. Fenwick drove a green Lincoln into the parking lot of an apartment complex in Washington, D.C., parked, and got out of the car. Opp. at 3–4. He walked to the door of his girlfriend's apartment and then, finding that she was not at home, returned to the car. Id. at 4. In the meantime, defendants Deputy Marshals Andrew Pudimott, Jeremy Fischer, and John Mickle (“the deputies”) were standing nearby in the parking lot, waiting to enforce an eviction order issued for one of the units in the complex. Id. at 4. The parties' accounts of what happened next diverge widely.

According to the defendants, based on Mr. Fenwick's youthful appearance, his behavior, and the appearance of his car, the deputies developed a reasonable suspicion that Mr. Fenwick was driving a stolen automobile and that he was too young to drive. Mem. at 4. As Mr. Fenwick was standing beside the Lincoln after returning from his girlfriend's apartment, they asked him to stop and speak with them. Id. Although Mr. Fenwick heard their request and pointed to his chest while saying, “Who, me?”, he did not stop, but instead got into the car and put it in reverse. Id. He then drove the car forward toward “one or more [of the] deputies” who by then had surrounded the vehicle, placing their lives in danger. Id. at 25. Responding to the “apparent threat to the safety of themselves, fellow officers, and/or possibly other bystanders,” Deputies Pudimott and Fischer fired several shots at Mr. Fenwick, id. at 26, before he drove off, leaving the parking lot. Compl. ¶ 38.

Mr. Fenwick, in contrast, claims that after he pointed to himself and said “Who, me?”, he did not observe any response on the deputies' part or hear their request to stop and talk with them. Opp. at 5. Not understanding that they wished him to stay in the parking lot, he climbed into his car and began to back out of his parking space. Id. at 6. After pulling out of the space, Mr. Fenwick stopped while he changed gears. Id., Ex. 3 at 3 (Declaration of Michael Fenwick) (“Fenwick Decl.”). At that point Deputy Pudimott began shooting at Mr. Fenwick. Deputy Fischer also “fired before [Mr. Fenwick] heard any orders to stop,” and “while the car was stopped.” Opp. at 12. Once Mr. Fenwick began to drive the car forward, Deputy Fischer fired “at least” one other shot at him “as [Mr. Fenwick] was driving away.” Id. at 12. Mr. Fenwick maintains that at no time did the deputies “fear[ ] for their lives,” id., and that the deputies “kept shooting at [him] as [he] was driving out of the parking lot.” Fenwick Decl. at 3.

Unlike the shooting itself, the events that followed are, for the most part, not in dispute. Although he had been struck by several bullets during the shooting, Mr. Fenwick managed to drive out of the parking lot. Fenwick Decl. at 3. He soon passed his stepfather driving on the same road, flagged him down, and was driven to a hospital for treatment of his injuries. Id. Officers from the Metropolitan Police Department found Mr. Fenwick at the hospital, and the deputies identified him as the person they encountered. Pl.'s Sealed Ex. 6 at 2. Mr. Fenwick was transported by helicopter to Washington Hospital Center, where he underwent emergency surgery and for a time was in critical condition. Id.; Fenwick Decl. at 3.

In February 2007, Mr. Fenwick was charged as a juvenile with, among other things, aggravated assault on a police officer and receipt and conversion of stolen property. Defs.' Sealed Ex. 7 at 2–3. His case was tried before Judge Patricia Broderick in the Family Division of the Superior Court of the District of Columbia. Id. During the trial, Mr. Fenwick's counsel moved for the exclusion of tangible evidence—photographs of the allegedly stolen car driven by Mr. Fenwick—on the ground that the evidence had been recovered as a direct result of the illegal seizure of Mr. Fenwick in violation of the Fourth Amendment. Defs.' Sealed Ex. 3 at 6. That seizure, according to counsel, occurred when “the deputies ran over to [the car Mr. Fenwick was driving] with guns drawn and then shot the driver.” Id. at 5. Judge Broderick rejected Mr. Fenwick's motion to suppress, Defs.' Sealed Ex. 1 at 3–6, and in a separate ruling, she found Mr. Fenwick “guilty/involved” as to one count each of felony assault on a police officer, receipt of stolen property, and unauthorized use of a vehicle. The assault count was based on Mr. Fenwick's having accelerated forward in the vehicle he was driving with Deputy Pudimott clearly visible near the front of the car, placing the deputy in danger of injury. Pl.'s Sealed Ex. 15 at 3–6; Defs.' Sealed Ex. 6 at 5. The verdict was upheld by the District of Columbia Court of Appeals, against Mr. Fenwick's challenge that government had not proven that he created “a grave risk of causing significant bodily injury” to an officer, as required for a felony conviction under the assault statute. See Memorandum Opinion and Judgment, In re M.T.F., No. 07–FS–1150, 10 A.3d 1158 (D.C. Dec. 2, 2010).

This action was filed by Mr. Fenwick's mother, Cheryl Fenwick, who served as the plaintiff in this case until Mr. Fenwick reached the age of majority. The complaint alleges that Deputies Fischer, Mickle, and Pudimott violated Mr. Fenwick's rights under the Fourth Amendment to the Constitution, and that the United States is liable to Mr. Fenwick under the Federal Tort Claims Act (“FTCA”) for acts of assault, battery, and false imprisonment committed by the deputies in the course of their employment. Mr. Fenwick seeks $10 million in compensatory damages and $100 million in punitive damages.

Surveillance video footage taken by security cameras positioned in the vicinity of the incident captured most of the encounter between Mr. Fenwick and the deputies. This video was relied upon by the Superior Court and the District of Columbia Court of Appeals in Mr. Fenwick's juvenile delinquency adjudication, and the parties have provided the video footage to the Court as evidence in this action.

The Court's earlier Opinion addressed issues arising from the plaintiff's failure to properly serve the individual defendants, and it clarified that Mr. Fenwick could not maintain common law claims against those individual defendants but could only pursue recovery from the United States for their conduct under the FTCA. In addition, the Opinion denied the plaintiff's motion to strike the defendants' exhibits that consisted of records from Mr. Fenwick's Superior Court proceedings. Fenwick v. United States, 691 F.Supp.2d at 112–16. The Court did not rule on the defendants' contention that Mr. Fenwick's claims are barred by res judicata, collateral estoppel, and the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the parties had not adequately briefed the preclusion question or provided the Court with all of the records from Superior Court that it needed to answer that question. Id. at 116–17. The parties have since filed supplemental briefs and exhibits as directed by the Court.

II. STANDARD OF REVIEW

Summary judgment may be 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). An issue 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505;Holcomb v. Powell, 433 F.3d at 895. 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505;see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849–50 (D.C.Cir.2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989).

The non-moving party's...