Harris v. U.S. Dep't of Veterans Affairs, 13–5207.

• Decision Date: 23 January 2015
• Docket Number: No. 13–5207.,13–5207.
• Parties: Wilbert HARRIS, Appellant v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

776 F.3d 907

Wilbert HARRIS, Appellant

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Appellee.

No. 13–5207.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 15, 2014.

Decided Jan. 23, 2015.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–00114).

Donald M. Temple argued the cause and filed the brief for appellant.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Wyneva Johnson, Assistant U.S. Attorney.

Before: ROGERS and WILKINS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

RANDOLPH, Senior Circuit Judge:

Wilbert Harris brought an action against the United States Department of Veterans Affairs (“VA”) seeking damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., for false arrest and false imprisonment, assault and battery, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. The district court granted the VA's motion for summary judgment on all claims. For the reasons that follow, we reverse the grant of summary judgment on Harris' assault and battery claim and on his claim of intentional infliction of emotional distress to the extent that it is based on his assault and battery claim. We affirm the grant of summary judgment on all other claims.

I.

Harris is a Vietnam War veteran who suffers from post-traumatic stress disorder (“PTSD”). On November 6, 2008, two days after the election of President Obama, Harris attended a group therapy session for veterans suffering from PTSD at the VA Medical Center in Washington, D.C.¹ David Sheets, a clinical social worker, ran the session. Harris had with him a newspaper announcing President Obama's election, and he displayed it proudly at the beginning of the session.

Harris and Sheets disagree on what occurred next, but Harris does not dispute that Sheets asked him not to discuss political issues during the session and, when he refused, Sheets asked him to leave. When Harris did not, Sheets left the room and returned a few minutes later with three VA police officers, Lieutenant William N. Nesbitt, Sergeant Denise G. Gentry, and Corporal Donald R. Christmas. As Harris left the room with the officers, Sheets told the officers that Harris had caused a “disturbance.” Sheets said Harris could not return to the group therapy session. According to Harris, Harris asked for a patient advocate, was “never violent [or] combative,” and attempted to re-enter the therapy room to recover his personal items, whereupon he was forced to the floor by the officers, handcuffed, and placed under arrest. Harris contends that during the arrest, one of the officers punched him in the ribs, fracturing one of them.

The parties agree that two officers then took Harris to the hospital's emergency department, where he was treated for a scrape on his left hand. After he was discharged from the emergency department, Harris was placed in a holding cell and issued a citation for “[d]isorderly [c]onduct which creates loud, boisterous, unusual noise.” J.A. 55; see38 C.F.R. § 1.218(b)(11). The citation was later dismissed without a hearing. Harris states that he “endured multiple hospital visits related to the injuries incurred” during the arrest, which included a fractured rib and permanent nerve damage in his left arm. He also claims that the attendant mental and emotional trauma further aggravated his PTSD.

Harris' amended complaint against the VA alleged false arrest and false imprisonment, assault and battery, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress under the FTCA. See28 U.S.C. § 1346(b)(1). The VA moved for dismissal, or, in the alternative, for summary judgment. SeeFed.R.Civ.P. 12(b)(1), (b)(6), 56. Harris opposed the VA's motion, arguing that “absent discovery” the VA's motion was “premature and should be denied.” Pursuant to the Rules of the District Court for the District of Columbia, Harris included a “concise statement” of “all material facts” that he thought necessaryto be litigated and “references to the parts of the record relied on to support [his] statement.” Rule 7(h), Rules of the U.S. District Court for the District of Columbia. His statement included citations to affidavits and medical documents and referred to disputes over Harris' behavior during the confrontation, whether he acted aggressively toward the police or forcefully tried to reenter the therapy room, how the police effected the arrest (specifically, whether they struck Harris once he was handcuffed), and whether Harris suffered a fractured rib and other injuries because of the arrest, among other disputes. Harris did not request discovery pursuant to Federal Rule of Civil Procedure 56(d).

The district court granted summary judgment to the VA on all claims. It concluded that “no reasonable jury could find that the arresting officers engaged in conduct amounting to false arrest and false imprisonment, assault and battery, negligence, negligent infliction of emotional distress, or intentional infliction of emotional distress.” The court determined that the officers had probable cause to arrest Harris for disorderly conduct “because he attempted to re-enter the group therapy room against the officers' unequivocal directive not to do so.” The court also held that the officers' use of force was reasonably necessary under the circumstances, ignoring Harris' later professions of numbness and weakness in his left hand because he had been diagnosed with carpal tunnel syndrome before his arrest. The court made no mention of Harris' alleged rib injury. Because Harris' arrest was secured with probable cause and reasonably necessary force, his claims of intentional infliction of emotional distress and negligent infliction of emotional distress also failed.

II.

We review a district court's decision to grant summary judgment de novo and consider the evidence in the light most favorable to the non-moving party. See Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.Cir.2013) (per curiam). Summary judgment may be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); seeFed.R.Civ.P. 56(a), (c). “A dispute over a material fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Arrington v. United States, 473 F.3d 329, 333 (D.C.Cir.2006) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A party opposing summary judgment must point the district court to disputed facts “with the requisite specificity and support them with appropriate references to the record.” Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988). We may affirm summary judgment on any ground supported by the record. Jones v. Bernanke, 557 F.3d 670, 676 (D.C.Cir.2009).

III.

Tort liability under the FTCA is determined according to the law of the place where the alleged acts or omissions occurred—in this case, the District of Columbia. Tarpeh–Doe v. United States, 28 F.3d 120, 123 (D.C.Cir.1994). Applying D.C. tort law, we consider each of Harris' claims in turn.

1. False Arrest and False Imprisonment

The elements of the torts of false arrest and false imprisonment are: (1) detentionor restraint against one's will within boundaries fixed by the defendant, and (2) the unlawfulness of such restraint. Edwards v. Okie Dokie, Inc., 473 F.Supp.2d 31, 44 (D.D.C.2007). ² The existence of probable cause for arrest defeats claims for false arrest and imprisonment. See id.; Gabrou v. May Dep't Stores Co., 462 A.2d 1102, 1104 (D.C.1983) (per curiam).

Congress authorized the Secretary of Veterans Affairs to “prescribe regulations to provide for the maintenance of law and order and the protection of persons and property on [VA] property.” 38 U.S.C. § 901(a)(1). Violations of such regulations may be punished by fines or imprisonment for not more than six months, or both. Id. § 901(c). One such regulation, codified at 38 C.F.R. § 1.218, establishes the rules of conduct “at all property under the charge and control of [the] VA.” Id. § 1.218(a). Under § 1.218(a)(5), all persons on VA property are barred from (among other things) engaging in conduct “which creates loud or unusual noise ... which otherwise impedes or disrupts the performance of official duties ... [and] which prevents one from obtaining medical or other services.” Id. A disturbance can also include the “[f]ailure to leave the premises when so ordered,” whereupon “the offender is subject to arrest and removal from the premises.” Id.; see also id. § 1.218(b)(11) (specifying schedule of offenses for disorderly conduct punishable pursuant to paragraph (a)).³

This regulation has been read to include causing a commotion that drew VA employees away from their ordinary duties, United States v. Agront, 773 F.3d 192, 199–200 (9th Cir.2014), and that “tended to ‘impede or prevent the normal operation of a service’ ” at a VA facility. United States v. Encinger, 4:10CR3027, 2010 WL 2771884, at *4 (D.Neb. Jul. 13, 2010) (quoting 38 C.F.R. § 1.218(11)); see also United States v. Shepard, 362 Fed.Appx. 107, 112 (11th Cir.2010) (unpublished).

Harris emphasizes that there is a factual dispute over who ordered Harris not to reenter the group therapy room—he says it was Sheets while the district court stated it was the police. Appellant Br. at 10. But the dispute is...