Flythe v. Dist. of Columbia, Civil Action No.: 10–2021 RC

• Decision Date: 25 February 2014
• Docket Number: Civil Action No.: 10–2021 RC
• Citation: 19 F.Supp.3d 311
• Parties: Betty S. Flythe, Plaintiff, v. District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

19 F.Supp.3d 311

Betty S. Flythe, Plaintiff

v.District of Columbia, et al., Defendants.

Civil Action No.: 10–2021 RC

United States District Court, District of Columbia.

February 25, 2014

Ernest Wendell Mcintosh, Newman & McIntosh, LLC, Gregory L. Lattimer, Law Offices of Gregory L. Lattimer, PLLC, Washington, DC, for Plaintiff.

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

MEMORANDUM OPINION & ORDER

Denying Plaintiff's Motion To Alter Or Amend Judgment

Re Document No.: 76, 77

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

On December 26, 2009, Tremayne G. Flythe was fatally shot by an officer of the District of Columbia's Metropolitan Police Department (“MPD”). Mr. Flythe's mother, Betty S. Flythe, brought this action in her personal capacity and on behalf of the estate of Mr. Flythe against the District of Columbia (“the District”) and the two officers directly involved in the shooting, Officers Travis Eagan and Angel Vazquez. The plaintiff brought 42 U.S.C. § 1983 claims against the defendant officers, as well as common law claims for assault and battery. In addition, the plaintiff asserted assault and battery, and negligent hiring, training, and supervision claims against the District, as employer of the individual officers. The defendants moved for summary judgment on all claims, and on November 8, 2013, the Court granted that motion in part and denied it in part. See ECF Nos. 71 & 72.

II. FACTUAL & PROCEDURAL BACKGROUND

The facts of this case are stated in full in the Court's Memorandum Opinion, see Memorandum Opinion at 2–8, ECF No. 72, but some background is useful. On December 26, 2009, Tremayne G. Flythe was fatally shot by a former officer of the MPD, Travis Eagan. The shooting involved Officers Eagan and Vazquez, who both pursued Mr. Flythe after Balbir Hundal reported that a man had thrown a rock through his liquor store window. Though Officer Eagan fired the fatal shot, both officers testified that they shot at Mr. Flythe because he threatened them both, in their separate encounters with him, with a knife.

The Court found that Mr. Flythe had not been seized by Officer Vazquez for purposes of his excessive force claim against him, and that he had been seized by Officer Eagan, but that Officer Eagan was entitled to qualified immunity because he was objectively reasonable in using deadly force against Mr. Flythe. The Court also found that because the plaintiff failed to proffer expert testimony, her negligent supervision claim against the District failed.

The Court found, however, that based on the eyewitness testimony proffered by the plaintiff, there was a genuine issue of material fact as to whether Mr. Flythe was armed during his encounter with Officer Vazquez;¹ as such, summary judgment was not appropriate on the plaintiff's assault claim against him. The Court also found that because there was a genuine issue of material fact as to Officer Vazquez's recitation of events, that genuine issue carried forward to Officer Eagan's encounter with Mr. Flythe, and the District, as both officers' employer, could still be liable for assault and battery under a theory of respondeat superior. As such, the claims that survived summary judgment were the assault claim against Officer Vazquez, and the assault and battery claim against the District. The plaintiff brings this motion to alter or amend the Court's interlocutory decision. See ECF Nos. 76 & 77. For the reasons that follow, the Court will deny that motion.

III. ANALYSIS

A. Legal Standard

The plaintiff does not identify under what rule she brings her Motion to Alter or Amend.² The defendants surmise that Federal Rules of Civil Procedure 50(e) or 60(b) apply. See Def.'s Opp'n Mot. 2, ECF No. 79. However, it is Rule 54(b) that governs, because the Court's entry of judgment is not a final judgment disposing of all the issues in this case. Federal Rule of Civil Procedure 54(b) provides that “any order or other decision ... that adjudicates fewer than all the claims or the rights and liabilities” of the parties that does not end the case “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed. R. Civ. P. 54(b). “The Court has broad discretion to hear a motion for reconsideration brought under Rule 54(b).” Isse v. Am. Univ., 544 F.Supp.2d 25, 29 (D.D.C.2008). The district court's discretion is “limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.” Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C.2009) (citation omitted). Though different courts “apply a variety of different standards when confronted with a motion for reconsideration,” see Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C.2005), this jurisdiction has established that reconsideration is appropriate “as justice requires.” Id. at 540 ; see also Capitol Sprinkler Inspection, Inc. v. Guest Services, Inc., 630 F.3d 217, 227 (D.C.Cir.2011) (explaining that Rule 54(b) recognizes a district court's power to reconsider an interlocutory order “as justice requires” (citation omitted)). “Considerations a court may take into account under the ‘as justice requires' standard include whether the court ‘patently’ misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred.” Williams v. Johanns, 555 F.Supp.2d 162, 164 (D.D.C.2008) (citing Singh, 383 F.Supp.2d at 101 ). In general, “a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.” Stewart v. Panetta, 826 F.Supp.2d 176, 177 (D.D.C.2011) (quoting Zeigler v. Potter, 555 F.Supp.2d 126, 129 (D.D.C.2008) ). “The party seeking reconsideration bears the burden of proving that some harm would accompany a denial of the motion to reconsider ... [and] that some sort of injustice will result if reconsideration is refused.” Isse, 544 F.Supp.2d at 29. A court may deny a motion for reconsideration that “raises ... arguments for reconsideration that court has ... already rejected on the merits.” Henok v. Chase Home Finance, LLC, 947 F.Supp.2d 6, 10 (D.D.C.2013).

* * *

The plaintiff asks this Court to alter or amend its judgment with respect to (1) the negligent supervision claim, (2) the unlawful seizure claim as to Officer Vazquez, (3) the excessive force claim as to Officer Eagan, and (4) the assault and battery claim as to Officer Eagan. The Court addresses each of these arguments in turn.

B. Negligent Supervision Claim ³

The plaintiff first argues that the Court erred in requiring expert testimony for the plaintiff's negligent supervision claim to survive summary judgment. Contrary to the plaintiff's assertion, this Court did not find as a matter of law that expert testimony is required in all negligent supervision cases. It stated, true to District of Columbia law, that the decision of whether to require expert testimony on a particular claim varies by case, and is left to the sound discretion of the district court.See Varner v. District of Columbia, 891 A.2d 260, 266 (D.C.2006) (citing District of Columbia v. White, 442 A.2d 159, 165 (D.C.1982) ). In its sound discretion, the Court found that in this case, expert testimony was needed to establish the standard of care because without it, there was no way to know whether restoring Officer Eagan to duty based on a psychological evaluation, as opposed to a clinical evaluation, fell short of the standard of care. A reasonable juror would need to know what the District should have done—what standard it should have met—in order to determine whether or not the District fell below that standard. Because no expert testimony was proffered, the Court entered judgment for the defendants on this issue.⁴

In its motion to alter or amend, the plaintiff includes, for the first time, expert testimony as to the standard of care for the supervision of an officer. The plaintiff includes the expert report of Timothy Longo, the Chief of Police of Charlottesville, Virginia. See ECF No. 77–1. The District of Columbia Court of Appeals has explained that in order to be sufficient, “the expert must clearly articulate and reference a standard of care by which the defendant's actions can be measured. Thus the expert must clearly relate the standard of care to the practices in fact generally followed by other comparable facilities or to some standard nationally recognized by such units.” Briggs v Wash. Metro. Area Trans. Auth., 481 F.3d 839, 846 (D.C.Cir.2007) (quoting Clark v. District of Columbia, 708 A.2d 632, 635 (D.C.1997) ). See also Butera v. District of Columbia, 235 F.3d 637, 660 (D.C.Cir.2001) (explaining that expert sufficiently established a standard of care for undercover police operations because he “set forth concrete bases for his expert testimony,” including consulting with a neighboring jurisdiction's police force, reviewing MPD's General Orders, examining a Department of Justice handbook on drug investigations, and examining a training manual from the Institute of Police Technology and Management of the University of North Florida).

In his expert report, after citing to, inter alia, (1) an article in Police Chief Magazine entitled “The Role of Psychological Fitness–for–Duty Evaluations in Law Enforcement,” (2) the Psychological Fitness–for–Duty Guideline, ratified by the International Association of Chiefs of Police, Psychological Services Section, and (3) an MPD General Order regarding Physical Examinations, see Longo Report at 28–29, ECF No. 77–1, Mr. Longo concluded that “what appears to...