UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 )

TRESHAWN V. JONES )

 ) 

Plaintiff, )

 ) Civil Action No. 11-2116(EGS)

v. )

 )

UNITED STATES OF AMERICA, et al.,)

 )

Defendants. )

 )

MEMORANDUM OPINION

This case is before the Court on defendants’ Motion to 

Dismiss or, in the alternative, for Summary Judgment. Upon 

consideration of the motion, the opposition and reply thereto, 

the entire record, and for the reasons explained below, 

defendants’ motion to dismiss or, in the alternative, for 

summary judgment is DENIED as to Counts I through IV of the 

complaint. Defendants’ motion for summary judgment is GRANTED

as to Count V of the complaint. 

I. BACKGROUND

In her Complaint, plaintiff brings several claims arising 

from a January 28, 2009 traffic stop that occurred in the 

District of Columbia. Plaintiff alleges that she was traveling 

near Southern Avenue and Galveston Street, S.E. with her minor 

child in the vehicle. Compl. ¶ 5. Plaintiff states that as she

approached the intersection, she noticed that her sister’s 
2

fiancé, Eric Herrion, was a passenger in a vehicle that had been 

stopped by Officer Yeliz Kadiev, a law enforcement officer 

employed by the United States Park Police. Compl. ¶ 4, 5. 

Plaintiff stopped her vehicle near the intersection and 

exited her car. Compl. ¶ 6. Plaintiff states that as she got 

out of her car, Officer Kadiev “began yelling and screaming at 

the plaintiff to get back her car.” Id. At the same time, 

plaintiff’s daughter ran to Mr. Herrion, who was in the 

passenger side of the vehicle that had been stopped. Id. 

Plaintiff states that Officer Kadiev “became even more irate 

even as the plaintiff attempted to explain the situation to

her.” Id. Plaintiff alleges that as she attempted to lead her 

daughter back to their car, Officer Kadiev “accosted the 

plaintiff, who was pregnant at the time, by pushing, manhandling 

and taking her to the ground.” Id. ¶ 7. Plaintiff further 

states that she was placed in handcuffs, arrested, and taken to 

jail. Id. Plaintiff was charged with disorderly conduct and 

failure to obey. Id. ¶ 8. Following a bench trial in the 

District of Columbia Superior Court, plaintiff was acquitted of 

all charges on October 7, 2009. Id.

Plaintiff states that she filed a notice of claim with the 

United States on January 28, 2011 by filing a Standard Form 95 

with the National Park Service of the Department of the 
3

Interior. Id. ¶ 9. Plaintiff’s claim was denied on May 25, 

2011. Id. Plaintiff then filed this suit on November 28, 2011. 

II. STANDARD OF REVIEW

A. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) tests the legal sufficiency of a complaint. Browning 

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint 

must contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief, in order to give the 

defendant fair notice of what the . . . claim is and the grounds 

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal quotation marks and citations omitted). 

While detailed factual allegations are not necessary, plaintiff 

must plead enough facts “to raise a right to relief above the 

speculative level.” Id. 

When ruling on a Rule 12(b)(6) motion, the Court may 

consider “the facts alleged in the complaint, documents attached 

as exhibits or incorporated by reference in the complaint, and 

matters about which the Court may take judicial notice.” 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). 

The Court must construe the complaint liberally in plaintiff’s 

favor and grant plaintiff the benefit of all reasonable 

inferences deriving from the complaint. Kowal v. MCI Commc’ns 

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court 
4

must not accept plaintiff’s inferences that are “unsupported by 

the facts set out in the complaint.” Id. “[O]nly a complaint 

that states a plausible claim for relief survives a motion to 

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

B. Summary Judgment

Summary judgment is appropriate when the moving party 

demonstrates that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571 

F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of 

material fact, the nonmoving party must demonstrate—through 

affidavits or other competent evidence, Fed. R. Civ. P.

56(c)(1)—that the quantum of evidence “is such that a reasonable 

jury could return a verdict for the nonmoving party.” Steele v. 

Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson,

477 U.S. at 248). While the Court views all facts in the light 

most favorable to the nonmoving party in reaching that 

determination, Keyes v. District of Columbia, 372 F.3d 434, 436 

(D.C. Cir. 2004), the nonmoving party must nevertheless provide 

more than “a scintilla of evidence” in support of its position, 

Anderson, 477 U.S. at 252. But “[i]f material facts are at 

issue, or, though undisputed, are susceptible to divergent 
5

inferences, summary judgment is not available.” Kuo–Yun Tao v. 

Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

III. DISCUSSION

A. Evidence Properly Before the Court

Rule 56 allows a party seeking or opposing summary judgment 

to “object that the material cited to support or dispute a fact 

cannot be presented in a form that would be admissible in 

evidence.” Fed. R. Civ. P. 56(c)(2). Plaintiff objects on the 

basis of inadmissibility to several of the statements in 

defendants’ Local Rule 56.1 statement of material facts not in 

dispute. Plaintiff does not explain the basis for her 

objections, merely responding that “there is no admissible 

evidence” in the record to support several statements. 

Plaintiff’s argument focuses on two documents: the transcript 

from her trial in Superior Court and the criminal incident 

report of her arrest. 

At the summary judgment stage, a party is not required to 

produce evidence in a form that is admissible, but the evidence 

must be capable of being converted into admissible evidence at 

trial. Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 

F.3d 1365, 1369 (D.C. Cir. 2000); see also America v. Mills, 654 

F. Supp. 2d 28, 35 (D.D.C. 2009) (finding that “if it is 

possible to convert evidence into a form that would be 

admissible at trial,” the court may consider it for summary 
6

judgment); see Richards v. Option One Mortgage, No. 08 Civ. 0007 

(PLF), 2009 WL 2751831, at *1 n. 3 (D.D.C.2009) (explaining that 

hearsay statements may be converted into admissible evidence if 

a witness with personal knowledge can testify to them at trial). 

Accordingly, to the extent that the evidence cited by defendants 

can be converted into admissible evidence, it can be considered 

on summary judgment.

The nature of plaintiff’s Rule 56(c)(2) objection to the 

admissibility of portions of the trial transcript is unclear. 

To the extent that plaintiff is objecting to the authenticity of 

the trial transcript, defendants have attached to their reply a 

copy of the court reporter’s certification of the transcript, 

see Defs.’ Reply, Ex. 8, and the Court finds that this is 

sufficient to establish the authenticity of the trial transcript

for purposes of summary judgment. See Fed. R. Evid. 901 (the 

requirement of authentication is satisfied if the proponent 

produces “evidence sufficient to support a finding that the item 

is what the proponent claims it is”); Mills, 654 F. Supp. 2d at 

34 (on summary judgment, the Court “need not find that the 

evidence is necessarily what the proponent claims, but only is 

that there is sufficient evidence so that the jury ultimately 

might do so”). If, instead, plaintiff seeks to object to the 

use of a transcript at trial, rather than live evidence, that 

argument also fails because such testimony can be “converted” 
7

into admissible live testimony if the witness in question

testifies at the trial. See Richards, 2009 WL 2751831, at *1 

n.3. Plaintiff makes no argument that any of the Superior Court 

trial witnesses would be unavailable for this trial. 

Accordingly, the Court finds that the trial transcript is 

properly cited as evidence in support of summary judgment.

The Court also finds that the use of the police report is 

also proper under Rule 56(c)(2). Defendants have properly 

established the authenticity of the police report in an 

affidavit submitted with their Reply. See Defs.’ Reply, Ex. 9. 

To the extent that plaintiff is also challenging the police 

record as hearsay, this argument also fails. As an initial 

matter, and although not argued by either party, the Court finds 

that the report would likely be admissible as a business record 

under Federal Rule of Evidence 803(6) or a public record under 

Rule 803(8). The Court also notes that while many of the 

statements contained within the police report are “out-of-court” 

statements, it does not appear that they are being used in this 

context to “prove the truth of the matter asserted.” Fed. R. 

Evid. 801(c). Rather, the statements are being offered by the 

defendants to establish that certain statements were made and 

their effect on the listener, Officer Kadiev. Ali v. D.C. 

Government, 810 F. Supp. 2d 78, 83 (D.D.C. 2011) (rejecting Rule 

56(c)(2) objection to certain statements and documents that were 
8

offered on summary judgment for non-hearsay purposes such as the 

effect on the listener). Similarly, to the extent that any of 

plaintiff’s own statements in the report are being offered for 

their truth, such statements would likely also be admissible in 

this case as admissions by party opponent. See Fed. R. Evid. 

801(d)(2). 

In view of the Court’s finding that plaintiff’s Rule 

56(c)(2) objections fail, and because plaintiff failed to 

otherwise object to certain statements by citing to record 

evidence as required by Local Civil Rule 7(h)(1), the Court will 

deem the following statements to have been admitted by the 

plaintiff: 

• The driver, identified as Bradley Cleveland, was also using 

a cell phone to send one or two text messages as he was 

stopped. Defs.’ SOF ¶ 7 (citing Tr. 27-29; Suppl. Crim.

Incident Report, Block 7). 

• Plaintiff, while engaged with the officer, encouraged and 

aided the seven-year-old passenger (Plaintiff’s daughter) 

to approach the passenger in the Mercury (Eric Herrion), 

where he hugged the child, putting his arm into the coat 

before the child departed. Defs.’ SOF ¶ 10 (citing Tr. 26-

30, 37-39, 47-48, 58-60; Suppl. Crim. Incident Report, 

Block 7).1

 1 Plaintiff partially disputes this statement, also citing to the 

trial transcript, and alleges that “[i]n fact, Mr. Herrion 

specifically testified that the plaintiff was handcuffed and on 

the ground before the child ever got out of the car.” Pl.’s SOF 

¶ 10. The Court finds that this does not create a material 

issue of fact. Even if plaintiff had already been restrained, 

she still could have been able to tell her daughter to go to Mr. 

Herrion. 
9

• Plaintiff then attempted to usher the girl from the area 

and the girl was driven away from the scene by her other 

family members who had also arrived at the scene of the 

stop. Defs.’ SOF ¶ 11 (citing Compl. ¶¶ 6-7; Suppl. Crim. 

Incident Report, Block 7). 

• Officer Kadiev detected the strong odor of marijuana as Mr. 

Herrion was removed from the Mercury and she located a 

small piece of green plant material consistent with 

marijuana on the passenger-side floor of the Mercury. 

Defs.’ SOF ¶ 12 (citing Suppl. Crim. Incident Report, Block 

7). 

• Officer Kadiev also took the cell phone from Mr. Cleveland 

and observed that one of the text messages read “Southern 

Ave. I’m dirty.” Defs.’ SOF ¶ 13 (citing Suppl. Crim. 

Incident Report, Block 7).

B. Counts I through IV

Plaintiff brings four claims against the United States: 

Count I (False Arrest/False Imprisonment); Count II (Intentional 

Infliction of Emotional Distress); Count III (Assault & 

Battery); and Count IV (Malicious Prosecution). Defendants 

argue that the claims against the United States are untimely 

because they were not filed in this Court within the requisite 

time period set forth by the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2671, et seq. Defs.’ Mot. at 21. The parties do 

not dispute that the FTCA applies to this case. See Pl.’s Opp. 

at 15. 

The FTCA “requires that claims be presented to the agency 

in question within two years of accrual, and filed in court 

within six months after denial by the agency.” Mittleman v. 

United States, 104 F.3d 410, 413 (citing 28 U.S.C. § 2401(b)). 
10

Specifically, the six month limit runs from the “date of 

mailing, by certified or registered mail, of the notice of final 

denial of the claim by the agency to which it was presented.” 

28 U.S.C. § 2401(b). Defendants argue that because plaintiff 

alleges that her claim was “denied by letter on May 25, 2011,” 

plaintiff was required to file her complaint by November 25, 

2011. Because the complaint was not filed until November 28, 

2011, defendants argue that plaintiff’s claims against the 

United States are untimely. 

A defendant bears the burden of proving that an action is 

untimely and, once the defendant satisfies that burden, the 

burden shifts to the plaintiff to assert that equitable 

principles justify avoidance of the defense. Bowden v. United 

States, 106 F.3d 433, 437 (D.C. Cir. 1997). By citing to the 

only date set forth in plaintiff’s complaint regarding the 

letter, May 25, 2011, defendant has carried its burden of 

establishing that plaintiff’s claim is untimely. The Court 

finds, therefore, that the burden shifts to the plaintiff to

establish that the complaint was timely filed. 

Plaintiff argues that she was permitted to file her 

complaint on November 28, 2011 because the Clerk’s Office was 

inaccessible on November 25, 2011, the day after Thanksgiving,

as a result of an administrative order by the Chief Judge 

closing the United States District Court for the District of 
11

Columbia, including the Clerk’s Office. Defendants do not 

dispute that an order was issued, but disagree as to its effect. 

Federal Rule of Civil Procedure 6(a)(3) provides that

“Unless the court orders otherwise, if the clerk’s 

office is inaccessible: 

(A) on the last day for filing under Rule 6(a)(1), 

then the time for filing is extended to the first 

accessible day that is not a Saturday, Sunday, or 

legal holiday; . . . .

Fed. R. Civ. P. 6(a)(3). Plaintiff argues that because the 

Clerk’s Office was closed on November 25, 2011 as a result of 

the Chief Judge’s order, the Clerk’s Office was “inaccessible”

and plaintiff was permitted to file her complaint on the 

following Monday, November 28, 2011. 

Defendant argues that plaintiff misunderstands the meaning 

of “inaccessible” in Rule 6(a)(3). Defendant argues that even 

if the Court was in recess, the Clerk’s Office has an afterhours depository that was open to accept filings.2 Defendant 

argues that in this context, “inaccessible” refers to instances 

of inclement weather and not simply the closing of the Court for 

other reasons. Defendant argues that the mere “closing” of the 

Court, as opposed to, for example, a presidential executive 

 2 The Court notes that defendants have provided no evidence in 

support of the statement that the 24-hour drop box remained open 

on November 25, 2011, stating only without any citation that 

they have “verified” with the Clerk’s Office that “even if the 

Court was in recess on the Friday after Thanksgiving, the Court 

was open to accept filings in an after-hours depository.” 
12

order designating November 25, 2011 as a “holiday” bars 

plaintiff from arguing that her complaint was timely filed. 

In a case not cited by either party, this Circuit expressly 

rejected the argument that the Clerk’s Office was not 

“inaccessible” on a day that the office was closed because 

filings could still theoretically have been made in the 24-hour 

drop box. See Tel. and Data Sys., Inc. v. Amcell F Atlantic 

City, Inc., 20 F.3d 501, 501 (D.C. Cir. 1994).3

 In that case, 

the Clerk’s Office and the Court had been closed due to 

inclement weather. The Circuit found that the argument 

regarding the drop box to be “plainly inconsistent” with the 

“considerations of liberality and leniency which find expression 

in Rule 6(a).” Id. (citing Union Nat. Bank v. Lamb, 337 U.S. 

38, 41 (1949); accord Keyser v. Sacramento City Unified School 

Dist., 265 F.3d 741, 747 (9th Cir. 2001) (holding that 

regardless of whether the day after Thanksgiving was a legal 

holiday, “the fact that the Clerk’s office was closed was 

sufficient to make it ‘inaccessible’” under Federal Rule of 

Appellate Procedure 26(a)(3), which is identical to Federal Rule 

of Civil Procedure 26(a)(3)). Similarly, the Court finds that 

the fact that the Clerk’s Office was closed on November 25, 2011 

pursuant to the Chief Judge’s order is sufficient to render it 

 3 The Court is troubled by the parties’ failure to cite this 

case, which is Circuit precedent that is binding upon this 

Court. 
13

“inaccessible” under Rule 6(a). Accordingly, plaintiff’s 

complaint was timely filed on November 28, 2011, the next day 

that the Clerk’s Office was open. Because defendants have 

offered no other basis for dismissing Counts I through IV, 

defendants’ motion to dismiss or, in the alternative, for 

summary judgment, is DENIED.4 

C. Count V

In Count V of the Complaint, titled “Deprivation of Civil 

Rights, 42 U.S.C. § 1983,” plaintiff alleges that Officer Kadiev 

violated her Fourth Amendment rights to be free of unreasonable 

seizure in the form of unlawful arrest and malicious 

prosecution,5 and by Officer Kadiev’s use of excessive force. 

Compl. ¶¶ 23-26. 

 4 Because the Court has found that plaintiff’s complaint was 

timely filed on November 28, 2011, the Court does not reach 

plaintiff’s alternative argument regarding the difference 

between the date of the letter versus the actual date the letter 

was mailed. Neither party argued that the letter was mailed 

before May 25, 2011, rendering the date of mailing moot for 

purposes of this motion. 

5 Neither party focuses on plaintiff’s related allegation of 

malicious prosecution, also included in Count V. Because 

plaintiff did not raise that issue in opposition to defendants’ 

motion for summary judgment on Count V, the Court will deem the 

issue conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global 

Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well 

understood in this Circuit that when a plaintiff files an 

opposition to a dispositive motion and addresses only certain 

arguments raise by the defendant, a court may treat those 

arguments that the plaintiff failed to address as conceded.”) 

(citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1987)). 
14

1. Section 1983 is Inapplicable

As an initial matter, and as argued by the defendants, this 

claim suffers from a fatal flaw. Specifically, Section 1983 

claims can only arise from actions taken under color of state 

law. See, e.g., Abramson v. Bennett, 707 F. Supp. 13, 16 

(D.D.C. 1989), aff’d 809 F.2d 291 (D.C. Cir. 1989). Because 

Officer Kadiev was a member of the United States Park Police, 

she is a federal employee, and plaintiff cannot state a claim 

against Officer Kadiev under Section 1983. 

In her opposition, plaintiff concedes that Section 1983 is 

“not applicable to this case.” Pl.’s Opp. at 9. Plaintiff 

argues, however, that the Court is “not bound by plaintiff’s

characterization of the action” and that Officer Kadiev “can be 

held responsible for her constitutional torts consistent with 

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).” Id. 

Plaintiff argues that Count V states a claim for a violation of 

the Fourth Amendment due to unlawful seizure and excessive 

force, and that those claims are actionable under Bivens. 

Because the Court is required to construe plaintiff’s claims in 

the light most favorable to her, see Anderson, 477 U.S. at 255 

and Kowal, 16 F.3d at 1276, the Court will construe Count V of 

plaintiff’s complaint as arising under Bivens, rather than 

Section 1983. 
15

2. Qualified Immunity

Officer Kadiev asserts the defense of qualified immunity. 

Qualified immunity is “an immunity from suit rather than a mere 

defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227 

(1991). Since the immunity exists to shield properly-acting 

government officials from suit, it should be granted or denied 

at the earliest possible stage in the litigation. Id. It is 

therefore appropriate to rule on the issue of immunity on a 

properly supported motion for summary judgment. Butz v. 

Economou, 438 U.S. 478, 508 (1978). Because the Court finds 

that there is no genuine dispute of material fact in this case, 

summary judgment is the appropriate forum to resolve a qualified 

immunity defense. See Seigert v. Gilley, 500 U.S. 226, 231. 

Qualified immunity shields government officials “from 

liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine of qualified 

immunity “gives government officials breathing room to make 

reasonable but mistaken judgments,” and “protects ‘all but the 

plainly incompetent or those who knowingly violate the law.’”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting 

Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants are 

entitled to qualified immunity unless the plaintiffs alleged (1) 
16

a violation of a constitutional right that (2) was “clearly 

established” at the time of violation. Saucier v. Katz, 533 

U.S. 194, 201 (2001), limited on other grounds by Pearson v. 

Callahan, 555 U.S. 223 (2009). In other words, “existing 

precedent must have placed the statutory or constitutional 

question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 

2093 (2012). Courts may “exercise their sound discretion in 

deciding which of the two prongs of the qualified immunity 

analysis should be addressed first in light of the circumstances 

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 

223, 236 (2009). In determining whether the legal rules at 

issue are clearly established, a court must look to “cases of 

controlling authority in [its] jurisdiction.” Wilson v. Layne, 

526 U.S. 603, 617 (1999). If there is no such controlling 

authority, then the Court must determine whether there is “a 

consensus of cases of persuasive authority.” Id. Once a 

defendant asserts a defense of qualified immunity, the burden 

then falls to the plaintiff to show that the official is not 

entitled to qualified immunity. Winder v. Erste, --- F. Supp. 

2d ----, 2012 WL 5863494, at *5 (D.D.C. Nov. 19, 2012). 

Accordingly, the inquiry here is not whether Officer 

Kadiev’s conduct violated plaintiff’s Fourth Amendment rights. 

Rather, the dispositive question is whether, given the 

circumstances presented, a reasonable police officer would have 
17

known that her conduct violated plaintiff’s clearly established 

Fourth Amendment rights. 

a. Officer Kadiev Is Entitled to Qualified Immunity With 

Respect to the Restraining and Handcuffing of 

Plaintiff

As discussed above, Officer Kadiev is entitled to qualified 

immunity if a reasonable officer could believe that her actions 

were lawful, in light of clearly established law and the 

information the officer possessed. As the Supreme Court has 

explained, “[n]ot every push or shove, even if it may later seem 

unnecessary in the peace of a judge’s chambers,” violates the 

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397 (1989). 

Defendants argue that under clearly established law, 

Officer Kadiev was entitled to restrain a person involving 

herself in a potential crime scene. Defs.’ Mot. at 20-21; 

Defs.’ Reply at 7 (citing, e.g., Muehler v. Mena, 544 U.S. 93, 

98-99 (2005); United States v. Jones, 973 F.2d 928, 931 (D.C. 

Cir. 1992) vacated in part on other grounds 997 F.2d 1475 (D.C. 

Cir. 1993)). In Muehler, the Supreme Court held that the 

detention of an occupant of a home during the execution of a 

search warrant was justified to minimize the risk of harm to 

officers and other occupants. The Court held that the use of 

handcuffs to detain the occupant to effectuate the detention was 

reasonable because the governmental interests in safety 

outweighed the intrusion on the occupant, and denied the 
18

occupant’s Section 1983 claim. Similarly, in Jones, this 

Circuit held that the subject of an investigative Terry stop may 

be ordered to the ground, handcuffed, and transferred to a 

police car without the stop becoming an unlawful seizure or an 

arrest, so long as the conduct was reasonable. Where the 

suspect had not obeyed police orders and had tried to flee, law 

enforcement’s conduct in detaining him did not violate his 

Fourth Amendment rights. The other case law cited by defendants 

also supports the right of law enforcement to use reasonable 

force to detain a person in the appropriate circumstances. See 

United States v. Wilson, 36 F.3d 127, 1994 WL 408264 (D.C. Cir. 

1994) (Terry stop and subsequent tackling of suspect was 

warranted when he dropped his only piece of luggage in train 

station and tried to flee after officers introduced themselves 

to him); United States v. Vaughn, 22 F.3d 1185, 1994 WL 119002 

(D.C. Cir. 1994) (when subject of Terry stop quickly thrust his 

hand into pocket upon seeing police approaching, and did not 

remove his hand upon request, it was reasonable for officer to 

use force to remove his hand from his pocket); see also United 

States v. Laing, 889, F.2d 281, 285 (D.C. Cir. 1989) (the “force 

used to carry out the stop and search must be reasonable, but 

may include using handcuffs or forcing the detainee to lie down 

to prevent flight”). 
19

Plaintiff makes no effort to distinguish the case law cited 

by defendants. In response to defendants’ arguments, plaintiff 

simply argues that “force without reason is unreasonable” and 

cites several cases that are not on point. See Pl.’s Opp at 15 

(citing Johnson v. District of Columbia, 528 F.3d 969, 976-77 

(D.C. Cir. 2008); DeGraff v. District of Columbia, 120 F.3d 298, 

302 (D.D.C. 1997)). In Johnson, this Circuit held that an issue 

of fact existed as to whether a man lying on his stomach was 

“threatening or suggested escape” such that the use of force, in 

the form of repeated kicking of the man in the stomach, was 

warranted by officers. 528 F.3d at 977. In that case, however, 

the Circuit also stated that an officer’s act of violence 

violates the Fourth Amendment if it furthers no governmental 

interest such as apprehending a suspect or protecting an officer 

or the public, and noted that the officers’ safety did not 

appear to be in issue in that case. Id. at 976. In DeGraff,

the Court found that there was an issue of fact as to whether 

the act of carrying a DUI suspect and handcuffing her to a 

mailbox constituted excessive force because, unlike in other 

cases, there was no evidence that the suspect was evasive, 

attempting to escape, or jeopardizing the safety of the 

officers. 120 F.3d at 302. 

Here, the undisputed facts show that Officer Kadiev was 

dealing with a traffic stop that was spiraling rather quickly 
20

out of control.6 Plaintiff admits that she got out of her car 

and approached a late-night traffic stop in progress. 

Plaintiff’s daughter, at the direction of the plaintiff, ran to 

the passenger in the car, Mr. Herrion, who put his arm in the 

child’s coat. Plaintiff then attempted to usher the child away 

from the stop and the child was driven away from the scene by 

other family members who had also arrived at the scene of the 

 6 Plaintiff also attempts to create an issue of fact in response 

to defendant’s arguments. Citing her trial testimony, plaintiff 

argues that the testimony “refutes any contention” that Officer 

Kadiev was justified in handcuffing plaintiff. The Court 

disagrees. As an initial matter, plaintiff’s trial testimony 

was not properly cited in her statement of facts and is not 

properly considered on summary judgment. See Fed. R. Evid. 

56(c)(1)(A); Local Civ. R. 7(h)(1) (requiring that a motion for 

summary judgment be “accompanied by a separate concise statement 

of genuine issues setting forth all material facts as to which 

it is contended there exists a genuine issue necessary to be 

litigated”). Plaintiff also does not specifically explain how 

her proffered trial testimony refutes any relevant facts. Upon 

the Court’s review of the testimony, it appears that plaintiff 

testified at her trial that she heard that her brother had been 

pulled over and that she traveled to the location where they 

were stopped and involved herself in the traffic stop. Pl.’s 

Opp. at 12. Plaintiff testified that she tried to go back to 

her car and told Officer Kadiev that she would wait at the 

corner but was told to come back by Officer Kadiev, who then 

handcuffed her and arrested her. Even if the testimony that 

plaintiff tried to return to her car were properly considered by 

the Court, it does not raise an issue of fact as to the 

reasonableness of Officer Kadiev’s conduct. Assuming plaintiff 

did attempt to return to her car, there was no guarantee that 

she would stay there, in view of her prior conduct. In light of 

all of the surrounding circumstances, including the conduct of 

plaintiff, the actions of plaintiff’s daughter, and the growing 

crowd of family members at the traffic stop, Officer Kadiev 

could have believed it was reasonable to handcuff plaintiff at 

that time for her safety and the safety of others. 
21

accident. At that point, it seems that a small crowd of 

plaintiff’s friends and family were at the scene of the 

accident, with only one officer. Officer Kadiev stated in her 

report that she detected a strong odor of marijuana in Mr. 

Cleveland’s car and found a small amount of marijuana in the 

car. She also stated that during the stop, Mr. Cleveland sent 

text messages, one of which read “Southern Ave. I’m dirty.” 

The Court finds that the facts in this case establish that 

a reasonable officer could have believed that her actions were 

lawful and reasonable under the circumstances. The facts are 

distinguishable from Johnson and DeGraff, in which an officer’s 

safety and the safety of the public was not at issue. In the 

circumstances described above, a reasonable officer could have 

believed that her safety or the safety of others was at risk.7

 

The Court finds that Officer Kadiev’s conduct therefore did not 

violate a clearly established constitutional right in 

restraining and handcuffing plaintiff, and that she is entitled 

to qualified immunity. 

 7 Plaintiff notes in her statement of facts that “Defendant 

Kadiev was alone in a vehicle because she chose to stop the 

vehicle which contained two men while she was alone.” Pl.’s SOF 

¶ 6. Plaintiff’s point in making this statement is unclear but 

to the extent that plaintiff suggests that Officer Kadiev cannot 

rely on the defense of qualified immunity or that the stop was 

otherwise improper because she “chose” to pull over two men at 

night, the Court finds the argument particularly unpersuasive. 
22

b. Officer Kadiev Is Entitled to Qualified Immunity With 

Respect to Plaintiff’s Arrest

Plaintiff also argues that her arrest violated her Fourth 

Amendment to be free of unlawful seizure and unlawful arrest. 

The key question is whether, at the time of the detention, a 

reasonable officer would have known that under clearly 

established law there was no probable cause to arrest plaintiff. 

“An officer retains qualified immunity from suit if he had an 

objectively reasonable basis for believing that the facts and 

circumstances surrounding the arrest were sufficient to 

establish probable cause.” Wardlaw v. Pickett, 1 F.3d 1297, 

1304 (D.C. Cir. 1993), citing Malley v. Briggs, 475 U.S. 335, 

341 (1986). Thus, even if there was not sufficient probable 

cause, a defendant will still be immune from suit if reasonable 

officers in their positions “could have believed that probable 

cause existed to arrest [plaintiff].” Hunter v. Bryant, 502 

U.S. 224, 228–29 (1991). As the Supreme Court has made clear, 

the officer’s actual state of mind is irrelevant to the 

existence of probable cause. Devenpeck v. Alford, 543 U.S. 146, 

153 (2004). Rather, the officer’s subjective reason for making 

the arrest need not be the criminal offense as to which the 

known facts provide probable cause. Id. “The fact that the 

officer does not have the state of mind which is hypothecated by 

the reasons which provide the legal justification for the 
23

officer’s action does not invalidate the action taken as long as 

the circumstances, viewed objectively, justify that action.” 

Whren v. United States, 517 U.S. 806, 813 (1996) (citations 

omitted). 

Defendants argue that a reasonable officer could have 

believed that there existed probable cause to arrest plaintiff 

for her possible involvement in a number of criminal offenses 

under the D.C. Code. Defs.’ Reply (citing D.C. Code ¶¶ 48-

904.01 (possession with intent to distribute a controlled 

substance); 48-904.07 (enlistment of minors to distribute a 

controlled substance); 22-405(b)(resisting, impeding or 

interfering with a law enforcement officer engaged in the 

performance of official duties); 21 U.S.C. § 841(a) (possession 

with intent to distribute a controlled substance)). 

Plaintiff again relies on her trial testimony and argues 

that the testimony “refutes any contention” that Officer Kadiev 

had probable cause to arrest her. As stated above, the Court is 

under no obligation to consider the trial testimony proffered by 

plaintiff, as it was not properly cited in her statement of 

facts. Again, however, the Court finds that the issue of 

whether plaintiff attempted to return to her car on her own 

accord does not create a genuine issue of material fact that 

precludes summary judgment. Rather, the undisputed facts 

demonstrate that Officer Kadiev was in the midst of a quickly 
24

unraveling situation involving suspected drug use and possession 

and the possible involvement of a minor in those crimes. 

Plaintiff’s actions in approaching the stop and involving her 

daughter in the stop were sufficient to lead a reasonable 

officer to believe that plaintiff had committed a crime, 

possibly one involving a minor, and a reasonable officer could 

have believed she had probable cause to arrest plaintiff. 

Accordingly, the Court finds that Officer Kadiev is entitled to 

qualified immunity as to Count V of the complaint.8 

IV. CONCLUSION

For all of the foregoing reasons, defendants’ motion to 

dismiss or, in the alternative, for summary judgment is DENIED

as to Counts I through IV of the complaint. Defendants’ motion 

for summary judgment is GRANTED as to Count V of the complaint. 

An appropriate Order accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan

United States District Judge

March 31, 2013

 8 Because the Court grants summary judgment as to Count V, the 

Court does not reach defendants’ argument that Officer Kadiev 

was not properly served.