Robinson v. Pezzat

• Decision Date: 18 March 2015
• Docket Number: Civil Case No. 12–0302 RJL
• Citation: 83 F.Supp.3d 258
• Parties: Marietta Robinson, Plaintiff, v. Sarah Pezzat, et al., Defendants.
• Court: U.S. District Court — District of Columbia

83 F.Supp.3d 258

Marietta Robinson, Plaintiff

v.Sarah Pezzat, et al., Defendants.

Civil Case No. 12–0302 RJL

United States District Court, District of Columbia.

Signed March 18, 2015

Jeffrey Steven Morrow, Rebecca K. Troth, Sidley Austin LLP, Washington, DC, for Plaintiff.

David A. Jackson, James Anthony Towns, Sr., Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

[Dkt. # 24]

RICHARD J. LEON, United States District Judge

Plaintiff Marietta Robinson (“plaintiff”) brought this action against the District of Columbia and District of Columbia Metropolitan Police Department (“MPD”) Officers Sarah Pezzat, Christian Glynn, Richard McLeod, James Boteler, and Kelly Baker¹ (collectively, “defendants”), seeking damages for violations of 42 U.S.C. § 1983 and various common law torts, stemming from the killing of her dog during the execution of a search warrant. See Complaint (“Compl.”) ¶¶ 1, 3 [Dkt. # 1]. Now before the Court is defendants' Motion for Summary Judgment. See Defs.' Mot. for Summ. J. (“Defs.' Mot.”) [Dkt. # 24]. Upon consideration of the parties' pleadings, relevant law, and the entire record in this case, the Court GRANTS defendants' Motion for Summary Judgment as to Counts I, II, and III of the Complaint and DISMISSES the remaining Counts IV, V, VI, VII, and VIII of the Complaint WITHOUT PREJUDICE.

BACKGROUND

On June 3, 2010, nearly two weeks prior to the events at issue, MPD officers arrested plaintiff's grandson, Kevin Jackson (“Jackson”), for possession of marijuana with intent to distribute. Defs.' Statement of Material Facts as to Which There is No Genuine Dispute (“Defs.' SOMF”) ¶¶ 8, 12 [Dkt. # 24–2]. Jackson informed the arresting officers that he resided with plaintiff at 1338 Fifth Street, N.W. in Washington, D.C. Defs.' SOMF ¶ 14. Shortly thereafter, on June 8, 2010, the D.C. Superior Court issued a search warrant, authorizing the MPD to search plaintiff's home for drug paraphernalia.² Defs.' SOMF ¶ 18; see Defs.' Mot. Ex. 5(b) [Dkt. # 24–8]. Prior to executing the search warrant, MPD Officers Baker and Boteler surveilled plaintiff's residence but did not see any evidence that plaintiff owned a dog. Defs.' SOMF ¶¶ 58–59.

When the defendant officers arrived at plaintiff's residence on June 15, 2010 to execute the search warrant, plaintiff answered the door with her thirteen-year-old pit bull mix—Wrinkles—by her side. Compl. ¶¶ 3, 5; see Defs.' SOMF ¶ 1. Wrinkles, was, by all accounts, a dog with aggressive tendencies. Veterinary reports state that Wrinkles frequently barked and growled at veterinary staff and had to be muzzled during routine examinations. Defs.' SOMF ¶ 4–5. This behavior was not confined to veterinary visits. At home, Wrinkles often barked and growled at strangers entering plaintiff's house, prompting plaintiff to sequester Wrinkles in the first floor bathroom when the dog appeared agitated. Defs.' SOMF ¶¶ 6–7; Def s Mot. Ex. 1, at 17:3–19 [Dkt. # 24–3]. Wrinkles heralded the MPD officers' arrival on June 15, 2010 in much the same way. Indeed, when the officers arrived on plaintiff's doorstep and announced their intention to search her residence, Wrinkles began growling and barking loudly. Defs.' SOMF ¶¶ 19–20, 24. Several MPD officers characterized Wrinkles' behavior as “aggressive,” and at least one officer testified that Wrinkles “snarled” at the search team. See Defs.' Mot. Ex. 8, at 112:10–14 [Dkt. # 24–11]; Defs.' Mot. Ex. 9, at 18:4–11 [Dkt. # 24–12]. After obtaining the officers' permission, plaintiff secured Wrinkles in the first floor bathroom and the officers entered the house. See Compl. ¶¶ 6, 8; Defs.' SOMF ¶¶ 25–26. Officer Pezzat, a woman weighing less than one-hundred pounds, opened the bathroom door, apparently unaware that Wrinkles had been placed therein. Defs.' SOMF ¶¶ 30–31.

Thereafter, the parties' recollections diverge. Plaintiff testified that immediately after opening the bathroom door, Officer Pezzat fired a shot at Wrinkles, who was lying prone on the bathroom floor. See Pl.'s Statement of Genuine Issues and Resp. to Defs.' Statement of Undisputed Facts (“Pl.'s SOMF”) ¶ 32(b) [Dkt. # 26–2]. According to plaintiff, it was only after being shot that Wrinkles sprang to action and bit Officer Pezzat on the foot. See “Pl.'s SOMF” ¶ 32(b). The MPD officers present at the scene, however, recall a different sequence of events. According to several officers, immediately upon opening the bathroom door, Officer Pezzat was besieged by Wrinkles, who bit her on the foot, shook vigorously, and began dragging her toward the bathroom. See Defs.' SOMF ¶ 32; Defs.' Mot. Ex. 10, at 59:16–19 [Dkt. # 24–13]. The bite pierced Officer Pezzat's steel-toed boots and punctured her foot. See Defs.' SOMF ¶¶ 40–41. Officer Pezzat knew that she “had to make a decision right then and there.” Defs.' Mot. Ex. 7, at 85:15–16 [Dkt. # 24–10]. She testified that “[t]he thought in my mind at the time was that [pepper spray] wasn't going to be effective.... I was starting to feel pain from the bite, and I knew I had to do something quick and decisive.” Defs.' Mot. Ex. 7, at 85:13–19. Motivated by fears that if she fell, Wrinkles could seize her throat or injure a vital organ. Officer Pezzat opted to discharge her weapon. See Defs.' SOMF ¶ 44; Defs.' Mot. Ex. 10, at 60:14–18. Officer Glynn, who was standing immediately behind Officer Pezzat and witnessed the events unfold, simultaneously drew, and discharged, his weapon. Defs.' Mot. Ex. 10, at 58:1–63:1. This version of events is corroborated by several eyewitness accounts. Officer McLeod testified:

“Once we walked into [plaintiff's residence], I heard behind me snarling again. I turned around to see that the dog had bitten Officer Pezzat and was holding on to her foot.... I saw the dog grabbing ahold of her foot and shaking his head and pulling her. A brief struggle, then I heard two shots, then the dog charged towards myself....”

Defs.' Mot. Ex. 4, at 31:19–32:5 [Dkt. # 24–6]. Officer Johnston likewise testified: “a dog came growling, bit Officer Pezzat in the foot, was pulling her down, biting her foot, her left foot.... That's when Officer Pezzat and Officer Glynn fired their service weapon[s].”³ Defs.' Mot. Ex. 9, at 19:2–8 [Dkt. # 24–12]. Neither party disputes that Officer Pezzat sought immediate medical treatment for her injuries. See Pl.'s SOMF ¶ 45.

Both parties agree, moreover, that after Officers Glynn and Pezzat fired their weapons, Wrinkles ran out of the bathroom toward Officer McLeod. See Defs.' SOMF ¶ 34; see Defs.' Mot. Ex. 11, at 104:21–22 [Dkt. # 24–14] (“After the shots the dog started coming toward [Officer Hopkins], Officer McLeod and Officer Ledesma.”). Upon seeing Wrinkles emerge, Officer McLeod discharged his weapon and continued to fire until Wrinkles changed course and headed toward the staircase, where Officers Ledesma and Hopkins were standing. Defs.' SOMF ¶¶ 35–36; see Defs.' Mot. Ex. 4, at 43:18–21, 44:17–22. Wrinkles' trajectory forced Officers Ledesma and Hopkins to back up the stairs in search of safety. Defs.'

SOMF ¶ 38. According to Officer Ledesma, because “the dog kept coming towards us and [tried] to get to us,” she was forced to deploy a protective shield. Def.'s Mot. Ex. 12, at 25:7–13 [Dkt. # 24–15]. The dog continued its assent for another few steps before succumbing to its injuries and falling to the base of the stairs. Defs.' Mot. Ex. 1, at 48:19–22. Plaintiff alleges that the entire incident left approximately twelve bullet holes in her residence. Compl. ¶ 63.

After Wrinkles died, Sergeant Boteler, another of the officers present at the scene, used plaintiff's sheets to cover the deceased animal. Defs.' SOMF ¶ 51; see Compl. ¶ 15. The officers, meanwhile, continued to search plaintiff's residence for the contraband enumerated in the search warrant. Defs.' SOMF ¶ 53. Plaintiff alleges that during the search, the officers wiped their bloody hands on her sofa, “rinsed off blood from the shooting in Plaintiff's drinking water fountain,” and destroyed photographs, artwork, and clothing. See Compl. ¶¶ 14–16, 155.

Plaintiff commenced this action on February 24, 2012, alleging violations of her Constitutional rights under 42 U.S.C. § 1983 (Counts I–III) and a kaleidoscope of common law torts, including assault (Count IV), intentional infliction of emotional distress (Count V), negligent infliction of emotional distress (Count VI), negligence (Count VII), and conversion (Count VIII). See generally Compl. Defendants moved for summary judgment on June 9, 2014, Defs.' Mot., and plaintiff timely opposed, see Pl.'s Opp'n.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper where the pleadings, stipulations, affidavits, and admissions in a case show that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must accept as true the evidence of, and draw “all justifiable inferences” in favor of, the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party may not rest upon the laurels of its pleadings. Rather, it is incumbent on the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Id. at 256, 106 S.Ct. 2505. A genuine issue exists when the evidence is more than “merely colorable,” id. at 249, 106 S.Ct. 2505, such that a reasonable jury could return a verdict for the nonmoving party,” id. at 248, 106 S.Ct. 2505. Summary judgment is thus proper “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

ANALYSIS

I. Section 1983 Claims Against Defendant Officers (Counts I and II)⁴

42 U.S.C. § 1983 provides a right of action to claimants alleging that a person acting under color of...