Fenwick v. US

• Citation: 691 F. Supp.2d 108
• Decision Date: 08 March 2010
• Docket Number: Civil Action No. 07-2330 (PLF).
• Parties: Michael FENWICK, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

691 F. Supp.2d 108

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 8, 2010.

David L. Shurtz, David L. Shurtz, Esq., Arlington, VA, for Plaintiff.

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

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiff Michael Fenwick claims that individual defendants Andrew Pudimott, Jeremy Fischer, and John Mickle—all Deputy United States Marshals—violated his Fourth Amendment rights and committed the common law torts of false imprisonment, assault, and battery against him. He seeks damages from the individual defendants under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Currently pending before the Court are (1) defendants' motion to dismiss plaintiff's complaint against the individual defendants for insufficient service of process and failure to state a claim, (2) defendants' motion for summary judgment, and (3) the plaintiff's objection and motion to strike all juvenile court records submitted by the defendants in support of their motions to dismiss and for summary judgment ("motion to strike").¹

After consideration of the parties' arguments and the applicable law, the Court will grant defendants' motion to dismiss in part, deny the remainder of that motion without prejudice, deny plaintiff's motion to strike, and defer any ruling on defendants' motion for summary judgment until the parties have submitted additional briefs and documents as instructed in this Opinion and the accompanying Order.

I. BACKGROUND

On January 3, 2007, Michael Fenwick drove a green Lincoln into the parking lot of an apartment complex in Washington, D.C., parked, and got out of the car. Pl.'s 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 Pudimott, Fischer, and 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 appearance and behavior and the appearance of his car, the deputies developed a reasonable suspicion that Mr. Fenwick was driving a stolen automobile. Defs.' Mot. 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, 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," 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 he did not hear the deputies' requests that he stop and talk to them. Pl.'s 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 the car had pulled out of the space, it stopped while Mr. Fenwick changed gears. Fenwick Decl. at 3. 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." Pl.'s Opp. at 12. Once Mr. Fenwick began to drive forward in the car, Deputy Fischer fired "at least" one other shot at him "as Mr. Fenwick was driving away." Id. at 12. At no time did the deputies "fear for their lives." Id. at 12.

Unlike the shooting itself, the events that followed are, for the most part, not in dispute. Although he had been struck during the shooting, Mr. Fenwick managed to drive out of the parking lot. Fenwick Decl. at 3. Soon afterward, he checked into a hospital for treatment of his injuries and was apprehended by police while there. Id.

In February 2007, Mr. Fenwick, who was sixteen years old at the time, 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 a judge 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, including the allegedly stolen car driven by Mr. Fenwick and all physical evidence collected from Mr. Fenwick at the hospital, 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.

The court rejected Mr. Fenwick's motion to suppress, stating, "I don't see or find anything inappropriate in the deputies' actions at all." Pl.'s Sealed Ex. 14 at 5. In a separate ruling, the court found Mr. Fenwick "guilty/involved" as to one count each of assault on a police officer with a dangerous weapon, receipt of stolen property, and unauthorized use of a vehicle. Pl.'s Sealed Ex. 16 at 2-3; Defs.' Sealed Ex. 6 at 5. An appeal from that decision is pending in the District of Columbia Court of Appeals. See Defs.' Sealed Ex. 6.

On December 28, 2007, this action was filed by Mr. Fenwick's mother, Cheryl Fenwick, who served as the primary 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 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.

II. DISCUSSION

A. Defendants' Motion to Dismiss

The defendants have submitted a single motion entitled "Motion to Dismiss or, in the Alternative, for Summary Judgment." For clarity, the Court will treat that filing as two separate motions, one to dismiss and one for summary judgment. The defendants assert four grounds for dismissal of some or all of the plaintiff's claims: (1) Deputies Pudimott, Fischer, and Mickle have never been properly served with process, and so claims against them should be dismissed pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure, Defs.' Opp. at 10; (2) Mr. Fenwick cannot raise any common law tort claims against the deputies in their individual capacities because those claims are barred by the FTCA, id. at 33; (3) the plaintiff's claims against Deputy Mickle are so vague and insubstantial that they must be dismissed; and (4) "plaintiff has failed to state a claim for relief" because "the defendants are, at a minimum, entitled to qualified immunity." Id. at 19-20.

With regard to the fourth contention, the Court notes that although the defendants' phrasing suggests that they are seeking a dismissal of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides for the dismissal of a complaint in the event that it "fails to state a claim upon which relief can be granted," the defendants' arguments regarding qualified immunity cannot be resolved on a motion to dismiss. The defendants rely on materials outside the pleadings in making their qualified immunity arguments, see, e.g., Defs.' Mot. at 29-30, and so those arguments must be addressed as part of a motion for summary judgment. See FED.R.CIV.P. 12(d). Similarly, the defendants' arguments concerning the sufficiency of the plaintiff's claims against Deputy Mickle refer to material outside the pleadings, see Defs.' Reply at 20, and therefore will also be treated as part of the summary judgment motion. The Court's discussion of the defendants' motion to dismiss thus encompasses only two issues: insufficiency of service of process and the propriety of claims against the deputies under the FTCA.

1. Insufficiency of Service of Process

Service of process upon individuals within a judicial district of the United States is governed by Rule 4(e) of the Federal Rules of Civil Procedure. Rule 4(e)(2) states that service upon an individual may be effected by

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

FED.R.CIV.P. 4(e)(2).² If a plaintiff fails to make proper service upon a defendant "within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." FED.R.CIV.P. 4(m). "The law is clear that the party on whose behalf service is made has the burden of establishing its validity when challenged." Chen v. District of Columbia, 256 F.R.D. 263, 266 (D.D.C.2009) (citation and internal quotation marks omitted).

The defendants argue that Mr. Fenwick has failed to make proper service upon Deputies Pudimott, Mickle, and Fischer because the plaintiff's process server never met any of the requirements of Rule 4(e)(2) of the...