1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEON JACKSON Plaintiff,

v. DISTRICT OF COLUMBIA, et al , Defendants

. Civil Action No. 13-205 (CKK)

MEMORANDUM OPINION (March 17, 2015) Plaintiff Deon Jackson filed suit against the District of Colum bia and Metropolitan Police Department Officers Joshua Boutaugh and Michael Weiss, assertin g violations of Plaintiff’s civil rights, in addition to common la w tort claims in connection wit h a traffic stop during which Plaintiff alleges his arm was br oken. Presently before the Cou rt is Defendants’ Motion for Summary Judgment. Upon consid eration of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court fi nds Defendants are entitled to q ualified immunity from Plaintiff’s 42 U.S.C. § 1983 unlawful arrest and excessive force claims. T he Court declines, however, to exercise supplemental jurisdiction over Plaintiff’s common law assault and battery, false arrest/false imprisonment, and intentional infliction of emotio nal distress claims and, therefore,

1 Defendants’ Motion for Summary J udgment (“Defs.’ Mot.”), ECF N o. [52]; Defendants’ Statement of Material Facts to w hich there is No Genuine Dispute (“Defs.’ Stmt.”), ECF No. [52- 1]; Plaintiff’s Opposition to Defendants’ Motion for Summary Ju dgment (“Pl.’s Opp’n”), ECF No. [53]; Plaintiff’s Statement of Material Facts in Dispute (“Pl.’ s Stmt.”), ECF No. [53]; Defendants’ Reply to Plaintiff’s Opposition to their Motion for Summary Jud gment (“Defs.’ Reply”), ECF No. [54]; Defendants’ Response to Pla intiff’s Statement of Material Facts in Dispute (“Defs.’ Resp. Stmt.”), ECF No. [54-1].2 dismisses without prejudice these claims. Accordingly, Defenda nts’ Motion for Summary Judgment is GRANTED.
I. BACKGROUND At the outset, the Court notes that Plaintiff has failed to com ply with the Federal Rules of Civil Procedure and the Local Civil Rules in submitting his Sta tement of Material Facts. Pursuant to the Rules, the non-moving party must respond to each of the opposing party’s alleged facts with an indication of wheth er the non-moving party admits or denies the fact. See LCvR 7(h)(1); Fed. R. Civ. P. 56(c). Plaintiff has provided the Court with a Stat ement of Material Facts, but Plaintiff’s Statement does not respond to each of Defendant’s alleged facts as required by the Federal and Local Rules. Accordingly, the Court could treat Defendants’ St atement of Material Facts as conceded to the extent Plaintiff has failed to respond to certa in factual allegations. See LCvR 7(h)(1) (“In determining a motion for summary judgment, the cou rt may assume that facts identified by the moving party in its statement of material fac ts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”); Fed. R. Civ. P 56(e) (“If a party fails to . . . properly address another part y’s assertion of fact as required by Rule 56(c), the court may . . . consid er the fact undisputed for pur poses of the motion”). Although Plaintiff’s noncompliance with the Rules has made reso lution of Defendants’ Motion more complicated, Defendants have relied primarily on the undisputed facts as presented by Plaintiff in Plaintiff’s Statement of Material Facts and Opp osition. Accordingly, the Court will take Defendants’ lead and rely on the facts as s tated by Plaint iff. For the purposes of setting forth the factual background of this case, the Court will cite to the facts in Defendants’ Statement of Facts since it provides a fuller exposition of the facts in thi s case than Plaintiff’s Statement. The3 Court will cite to Plaintiff’s Statement of Facts or Opposition when a fact is disputed or further explicated by Plaintiff.
A. Factual Background On or about February 18, 2012, Defendants Boutaugh and Weiss ob served Plaintiff driving along Brentwood Road, Northeast , in Washington, D.C. Defs.’ St mt. ¶ 2. Defendants Weiss and Boutaugh “believed Plaintiff wa s driving erratically, and obser ved him commit traffic infractions, including crossing the double line.” Id. ¶ 3. As a result, Defendants initiated a stop of Plaintiff’s vehicle. Id. ¶ 5. Plaintiff disputes that he committed any traffic violatio ns and claims that “he did not swerve out of his lane and had no problems maintaining cont rol of his vehicle at all times.” Pl.’s Stmt. ¶ 1. Plaintiff “submits the most that Defendants c ould have observed on that evening as they were driving behind him, was his car hesitating on a co uple of occasions due to a transmission problem.” Pl.’s Opp’n at 13 (citing Pl.’s Ex. A ( Jackson Depo.), EC F No. [53-1], at 182:10-183:9); Defs.’ Stmt. ¶ 4 (citing to Defs.’ Ex. C (Jackso n Depo.), ECF No. [52-4], at 23:19- 24:5). After initiating a stop of Plain tiff’s vehicle, Defendant Weis s approached Plaintiff’s vehicle on the driver side, while Defe ndant Boutaugh approached the veh icle on the passenger side. Defs.’ Stmt. ¶ 7. Plaintiff was asked to roll down his driver side wi ndow, but Plaintiff explained to the officers that he was unable to do so because his window was bro ken. Id. ¶ 8. Instead, Plaintiff opened his driver side door to give Defendant Weiss his license and registration. Id. ¶¶ 9-10. Defendant Weiss then returned to the squad car and called for a field sobriety officer while Defendant Boutaugh remained at th e passenger side of Plaintiff’ s vehicle. Id. ¶¶ 10-12. Defendant Boutaugh “believed that Plainti ff’s words were slurred as he sp oke and he was slow to respond to questions.” Id. ¶ 13. Plaintiff contends that his “speech was not slurred and he was not slow to4 respond to the officers’ questions.” Pl.’s Stmt. ¶ 3. Defenda nt Boutaugh explained to Plaintiff that a field sobriety officer had been contacted and would admi nister a field sobriety test to Plaintiff, but Plaintiff “indicated that he would not submit to a field sobriety test.” Defs.’ Stmt. ¶¶ 14-15. Plaintiff alleges that he was asked if he would take a breathalyzer test and that he refused to submit to a breathalyzer test, not a field sobriety test. P l.’s Stmt. ¶ 13; Pl.’s Opp’n at 6 (citing Pl.’s Ex. A (Jackson Depo.), at 50:2-51:2; 68:7-20; Pl.’s Ex. C (Jackson Decl.), ECF No. [53-3]. The Court finds this dispute to be of no moment as what is ulti mately material from this fact is Plaintiff’s refusal to submit to an evaluation of his sobriety. 2
Plaintiff then closed the driver side door. Defs.’ Stmt

. ¶ 16. Defendant Boutaugh “did not know what Plaintiff might do next and believed he may attempt t o drive away.” Id. ¶ 17. Plaintiff contends that he informed Defe ndant Boutaugh that he was going to close his door “because he was cold.” Pl.’s Stmt. ¶ 6. Defendant Boutaugh then went to P laintiff’s driver side door to place him under arrest. Defs.’ Stmt. ¶ 18. Defendant Boutaugh 3 proceeded to pull Plaintiff out of the vehicle and, in so doing, “applied pressure to Plaintiff’s arm. ” Id. ¶¶ 19-20. In Plaintiff’s factual recitation, Plaintiff further e xplains that “as Defendant Boutaugh is pulling Plaintiff out of the car, he bends and twists Plaintiff’s arm behind his back while at the same time bending his left hand in towards his forearm in a goose neck position, and at the same t ime, yanking his arm up towards

2 Moreover, in Defendants’ Reply, Defendants appear to agree tha t Plaintiff was asked to take a breathalyzer test, but r efused to submit to such a test.

3 There is a factual dispute as t o whether Defendant Weiss was in volved in restraining Plaintiff when Plaintiff’s arm br oke or whether he was still at the squad car. See Defs.’ Stmt

. ¶ 21; Pl.’s Stmt. ¶ 7. The Court will address the contours and i mpact of this factual dispute in Part A.ii. of the Discussion. However, to avoid unnecessary confusion in the recitation of the Factual Background, the Court will only reference Defendant Boutaugh’s involvement in restraining Plaintiff since all parties are in agreement that Defendant Bou taugh was restraining Plaintiff when his arm broke.5 his shoulder area” and “pushing Pl aintiff in towards his car.” Pl.’s Opp’n at 7 (citing Pl.’s Ex. A (Jackson Depo.), at 51:11, 53:12-58:1; Pl.’s Ex. B (Boutaugh De po.), ECF No. [53-2], at 41:17- 42:22). Plaintiff’s arm broke almost immediately. Defs.’ Stmt

. ¶ 20. Once Plaintiff’s arm broke and went limp, “Defendant Boutaugh d ropped Plaintiff’s arm and no additional pressure was applied” and an ambulance was called. 4 Id

. ¶ 23. Plaintiff was taken to the hospital by ambulance. Id . ¶ 24. At the hospital, “Plaintiff refused a breathalyzer and blood alcohol test when asked by the District’s field sobriety officer.” Id. ¶ 25. After his release from the hospital, Plaintiff was transported to the police stat ion where he was charged with Assault on a Police Officer and traffic violations. Id. ¶ 26. The traffic violation charges were dismissed and the charge of Assault on a Police Officer was later dropped for want of prosecution. Id. ¶¶ 27-
28.
B. Procedural Background Plaintiff filed su it on February 15, 2013, asserting eight causes of action; specifically, one count of deprivation of civil rights under color of law in viol ation of 42 U.S.C. § 1983 as to all Defendants (Count I), and seven common law tort claims. See generally Compl., ECF No. [1].

4 In the factual recitation in P laintiff’s Opposition, Plaintiff contends that Defendant Boutaugh told Plaintiff that he di dn’t believe that Plaintiff’s arm was broken and did not let go of Plaintiff’s arm—even though Plaintiff had screamed that it was broken—until Defendant Weiss said that “he believed the arm was broken, at which time Plaint iff’s arm went limp and Defendant Boutaugh finally released the arm.” Pl.’s Opp’n at 7 (citing P l.’s Ex. A (Jackson Depo.), at 51:19, 55:6-8, 56:13-57:8, 58:2-59:22); P l.’s Ex. C (Jackson Decl.)). However, Plaintiff’s cited deposition testimony and declar ation do not su pport this factua l allegation. Instead, Plaintiff testified that Defendant Boutaugh let go of Plaintiff’s arm onc e his arm broke and went limp and “drop[ped] to the left side of [his] body.” Pl.’s Ex. A (Jacks on Depo.), at 58:17-59:7. Plaintiff testifies that Offi cer Boutaugh told Plaintiff that his arm is not broken and that Officer Weiss told Officer Boutaugh that Plaintiff’s arm is broken, but Plaintiff cannot remember if Officer Boutaugh made that remark before or after he left go of Plaintiff’s arm. Id. at 59:8-13. Accordingly, the Court does not find there to be a genuine dispute as to whether Plaintiff’s arm was released promptly after it was broken.6 The District of Columbia moved to dismiss Count I for failure t o state a claim as to Defendant District of Columbia. The Court granted Defendants’ Motion to Dismiss and dismissed without prejudice Plaintiff’s § 1983 clai ms against Defendant District of Columbia. See Mem. Op. (June 13, 2013), ECF No. [19]. Plaintiff subsequently sought leave t o file an amended complaint which the Court granted except as to Plaintiff’s § 1983 claim against the District as it “remain[ed] substantively identical to the C ount I that the Co urt dismissed in its June 13, 2013, Order.” Order (Nov. 18, 2013), ECF No. [32]. Plaintiff’s Amended Complaint, see ECF No. [33], asserts the same causes of action as Plaintiff’s original Complaint. Specifically, Plaintiff assert s the following causes of actions against the following Defendant s: (1) deprivation of civil righ ts under color of law in violation of 42 U.S.C. § 1983 as to Defendant s Weiss and Boutaugh (Count I); (2) assault/battery against Defendant Boutaugh and the Distri ct of Columbia; (3) intentiona l infliction of emotional distress as to all Defendants; (4) false arrest/false imprisonment as to all Defendants; (5) malicious prosecution as to all Defendants; (6) negligent failure to prop erly train and supervise against the District of Columbia; (7) negligent hiring/retention as to the District of Columbia; and (8) negligence as to all Defendants. Presently before the Court is De fendants’ Motion for Summary Ju dgment as to all claims in Plaintiff’s Amended Complaint. As Plaintiff has filed an Op position to Defendants’ Motion for Summary Judgment and Defendants filed a Reply, this Motion is n ow ripe for the Court’s review.
II. LEGAL STANDARD Summary judgment is appropriate w here “the movant shows that th ere is no genuine dispute as to any material fact a nd the movant i s entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). The mere existence of some factual dispute is i nsufficient on its own to bar summary7 judgment; the dispute must pertain to a “material” fact. Id . Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the gover ning law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning that there must be sufficien t admissible evidence for a reasonable trier of fact t o find for the non-movant. Id. In order to establish that a fact is or cannot be genuinely dis puted, a party must (a) cite to specific parts of the record – including de position testimony, documentary evidence, affidavits or declarations, or other compete nt evidence – in support of its p osition, or (b) demonstrate that the materials relied upon by the opposing party do not actually est ablish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offere d without any factual basis in the record cannot create a ge nuine dispute sufficient to sur vive summary judgment. Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp ., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertionof fact or fails to properly address another party’s assertion of fact,” the district court may “con sider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable in ferences drawn in his favor. Liberty Lobby , 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet jus tifiable inferences, summary ju dgment is inappropriate. Moore v.
Hartman , 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district c ourt’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether8 it is so one-sided that one party must prevail as a matter of l aw.” Liberty Lobby , 477 U.S. at 251- 52. In this regard, the non-movant must “do more than simply s how that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby , 477 U.S. at 249-50 (internal citations omitted).
III. DISCUSSION Defendants move for summary judgment on all of Plaintiff’s clai ms in his Amended Complaint. In his Opposition to Defendants’ Motion for SummaryJudgment, Plaintiff concedes judgment on his malicious prosecution and abuse of process clai m (Count V) as well as his negligence claims (Counts VI through VIII). Accordingly, the C ourt shall only address Plaintiff’s § 1983 claims as they relate to Defendants Boutaugh and Weiss ( Count I); Plaintiff’s assault/battery claim against Def endants Boutaugh and the Distr ict of Columbia (Count II); Plaintiff’s intentional infliction of emotional distress claim against all Defendants (Count III); and Plaintiff’s false arrest claim a gainst all Defendants (Count IV). Ultimately, the Court finds Defendants are entitled to judgm ent on Plaintiff’s § 1983 claim s. As to Plaintiff’s common law claims, the Court shall, in its d iscretion, decline to exercise supplemental jurisdiction over these claims.
A. Section 1983 Claims Section 1983 provides a remedy against “any person” who, under color of state law, deprives another of rights prot ected by the Cons titution. 42 U .S.C. § 1983. Count I of Plaintiff’s Complaint states in conclusory form that “[t]he Defendants [sic ] actions arise under the United States Constitution, particularly under the provisions of the F irst, Fourth, Fifth, Sixth and9 Fourteenth Amendments.” Compl. ¶ 16. In response to Defendants ’ Motion for Summary Judgment, Plaintiff concedes that he cannot sustain a Constitutional claim under the First, Fifth, Sixth, or Fourteenth Amendments. See Pl.’s Opp’n at 8-9. Accordingly, the Court shall only analyze Plaintiff’s claim that Defendants Boutaugh and Weiss de prived Plaintiff of his Fourth Amendment rights. Plaintiff alleges that the Def endant officers violated the Four th Amendment by both unlawfully arresting Plaintiff and by using excessive force in arresting Plaintiff. Defendants argue that the evidence in the record does not support a finding that the officers unlawfully arrested Plaintiff or used excessive force against Plaintiff and that De fendants are entitled to qualified immunity for their actions. A plaintiff may not recover under § 1983 if the defendant is en titled to qualified immunity. See Scott v. Harris, 550 U.S. 372, 376 (2007). “Qualified immunity shields federal and state officials from money damages unless a plaintiff alleges facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd , 131 S.Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[C]onduct violates clearly established law when, at the t ime of the challenged conduct, th e contours of a right are sufficiently clear that every reasonable officer would have understood that what he is doing violates that right.” Id. at 2083 (internal quotation marks and notations omitted) (quot ing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The district court has the discret ion to decide “which of the two prongs of the qualified immunity analysis should be add ressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).10 The Court shall address Plaintiff’s § 1983 unlawful arrest and excessive force claims in

turn. i. Unlawful Arrest Defendants claim that they are entitled to qualified immunity b ecause they had probable cause to arrest Plaintiff and, thus, did not violate Plaintiff’ s constitutional rights in arresting him. Specifically, Defendant s contend that “where it is undisputed t hat the officers observed that Plaintiff had driven erraticall y, he appeared intoxicated, and Plaintiff stated that he would refuse sobriety testing, probable cause e xisted to arrest Plaintiff fo r driving under the in fluence.” Defs.’ Mot. at 8. Plaintiff responds that the “facts relevant to ques tions of probable cause and whether this was a lawful arrest are strongly contested in this case” a nd, thus, summary judgment is not appropriate as to this cl aim. Pl.’s Opp’n at 16. “Because it is well-established that ‘an arrest without probab le cause violates the [F]ourth [A]mendment,’ the defendant is entitled to qualified immunity o nly if ‘a reasonable officer could have believed that probable cause existed’ to arrest the plaint iff . . . .” Ronkin v. Vihn , --- F.Supp.3d --- , 2014 WL 5280682, *4 (D.D.C. Oct. 16, 2014) (quoting Martin v. Malhoyt , 830 F.2d 237, 262 (D.C. Cir. 1987) & Hunter v. Bryant , 502 U.S. 224, 228 (1991))). The assessment of probable cause is an objective one. An arres t is supported by probable cause if, ‘at the moment the arrest was made, . . . th e facts and circumstances within [the arresting officers’] knowledge . . . were sufficient to warrant a prudent man in believing’ that the suspect has commit ted or is committing a crime. Wesby v. District of Columbia , 765 F.3d 13, 20 (D.C. Cir. 2014) (quoting Beck v. Ohio , 379 U.S. 89, 91 (1964) (alteration in origi nal)). Courts must “evaluate [ ] the evidence from the perspective of the officer, not the plaintiff.” Moorehead v. District of Columbia, 747 A.2d 138, 147 (D.C. 2000). Furthermore, “[i]t must always be remembered that proba ble cause is evaluated ‘from the11 perspective of a reasonable officer on the scene, rather than w ith the 20/20 vision of hindsight.’
” Frazier v. Williams , 620 F.Supp.2d 103, 108 (D.D.C. 2009) (quoting and citing Wolfe v. Perry , 412 F.3d 707, 717 (6th Cir. 2005)). Plaintiff argues that the Defe ndant officers did not have prob able cause to conduct an investigatory stop of Plaintiff’s vehicle, nor did they have pr obable cause to arrest Plaintiff for any crime. Defendants respond that, even accepting Plaintiff’s version of the facts, the officers had probable cause to stop Plainti ff’s vehicle because Plaintiff ad mits that he was “stalling,” “hesitat[ing],” and “lurch[ing]” as he drove along Brentwood Ro ad. Defs.’ Mot. at 15; see Pl.’s Ex. A (Jackson Depo.), at 182:10- 183:9. It is undisputed that the officers observed Plaintiff driving erratically at night. The Court finds that such an observationis sufficient to support a “reasonable suspicion” that Plaintiff was driving while intoxicated, which is actually all that is needed for an officer to conduct a lawful investigatory stop of a vehicle. United States v. Johnson , 519 F.3d 478, 481 (D.C. Cir. 2008) (“In Terry [ v. Ohio ], the Supreme Court held that ‘the police can stop and briefly detain a person for inve stigative purposes if the offic er has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.’”). Indeed, Plaintiff’s own expert, Gerard Busnuk, testified at dep osition that the officers had reasonable suspicion that Plaintiff had been driving under the influence and, thus, had reason to stop and detain him. Defs.’ Ex. F (Busnuk Depo.), ECF No. [52- 7], at 74:6-11 (“My opinion is that at the time the arrest was made, . . . the officers had re ason to stop and detain Mr. Jackson . . . .”); 98:22-99:5 (“Q. And you, in fact, believe that they did have reasonable suspicion that [Mr. Jackson was driving under the influence in order to stop and de tain him for further investigation] – A. Based on their written documentation, yes.”).12 As for the officers’ ultimate a rrest of Plaintiff, Defendants argue that the facts known to the officers provided probable cau se to arrest Plaintiff for ei ther driving under the influence (“DUI”), reckless driving, or failure to obey. Defs.’ Mot. at 17-18; Defs.’ Reply at 7-11. An arrest is valid so long as “the [arres ting] officers had probable caus e to believe [the plaintiff] had committed any crime.” United States v. Broadie , 452 F.3d 875, 881 (D.C. Cir. 2006) (alterations and emphasis added). An officer’s “subjective reason for makin g the arrest need not be the criminal offense as to which the known facts provide probable c ause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Accordingly, as the Court finds that the officers had probable cause to arrest Plaintiff for DUI, the Court need not evaluate whether the offi cers had probable cause to arrest Plaintiff for reckless dr iving or failure to obey. Pursuant to D.C. Code § 50-2201. 05(b)(1)(A)(i), “[n]o person sh all operate or be in physical control of any vehicle in the District . . . (II) Whil e under the influence of intoxicating liquor or any drug or combination thereof.” 5 Here, it is undisputed that the officers observed Plaintiff driving erratically and that Plaintiff refused when a sked to take a breathalyzer test. 6 It is reasonable for an officer to view Plaintiff’s refusal to submit to a breathalyzer as evidence of guilt.

5 As Plaintiff was arrested in February 2012, the Court cites to the D.C. Code provision that was operative at the tim e of Plaintiff’s arrest.

6 Defendants also argue that it i s undisputed that Plaintiff was answering questions slowly and with slurred speech even though Plaintiff sp ecifically stat es that he was not answering questions slowly or with slurred speech. Defs.’ Reply at 9 n.2 . Defendants argue that Officer Boutaugh interpreted Plaintiff’s responses to be slow and slurr ed and that Plaintiff cannot speak to the officer’s interpretation. The Court does not agree that this fact is undisputed. While the Court must consider whether probable cause existed to arrest Pl aintiff based on the facts known to the arresting officer and based on the officer’s perspective, n ot the plaintiff’s, this does not mean that a plaintiff cannot dispute the validity and veracity of th e arresting officer’s alleged perception of the facts. Accordingly, the Court will not consider this fac t among the undisputed facts known to the officers at the time of Plaintiff’s arrest.13 See Stevenson v. District of Columbia , 562 A.2d 622, 624 (D.C. 1989) (citing D.C. Code § 40- 505(c) 7 ) (“appellant’s refusal to take a blood alcohol test could prop erly be considered against him as evincing consciousness of guilt.”); D.C. Code § 50-1902 (200 1) (“Any person . . . who operates a motor vehicle within the District shall be deemed to have giv en his or her consent, . . . to 2 chemical tests of the person’s blood, urine, or breath, for the purpose of determining blood-alcohol content or the blood-drug content.”); D.C. Code § 50-1905(c) (2001) (“evidence of . . . refusal to submit [to chemical testing] sha ll be admissible in any civil o r criminal proceeding arising as a result of the acts alleged to have been committed by the person prior to the arrest”); see also Miller v. Harget , 458 F.3d 1251, 1260 (11th Cir. 2006) (citing to Ga. Code Ann. § 40-5-67.1(b)(2) which provides that an individual’s r efusal to submit to a blood-alco hol test is admissible as evidence at trial and finding that “[i]t was reasonable for Officer Harget to view th[e] choice [to refuse a breathalyzer test] as evidence of guilt”); Wilder v. Turner, 490 F.3d 810, 815 (10th Cir. 2007) (holding that “probable cause developed when twice Plaint iff refused to participate in a field sobriety test”); Summers v. State of Utah, 927 F.2d 1165, 1166 (10th Cir. 1991) (“The undisputed facts regarding plain tiff’s operation of his vehicle , the officer’s scent of alcohol emanating from the vehicle and plaintiff’s refusal to take a fi eld sobriety test substantiate the . . . conclusion” that the officer had probable cause). Accordingly, the Court concludes that a prudent officer could conclude from the combination of Plaintiff’s erra tic driving and the refusal to take the breathalyzer test that Plaintiff had in fact been drinking. The Court would also note that, coupled with Plaintiff’s refusal to take the breathalyzer test, the fact that Defendant Boutaugh, as discussed in the following section, reasonably inferred that Pl aintiff was attempting to flee contact

7 The D.C. Code provision relied on in Stevenson is substantively the same as the parallel provision operative at the time of Plaintiff’s arrest—D.C. Code § 50-1905(c) (2001).14 with the officers when he closed his door, further supports a f inding that the officers had probable cause for Plaintiff’s arrest. Plaintiff principally argues that it was “improper for Defendan ts to arrest Plaintiff prior to obtaining an official opinion and authorization from a certifie d field sobriety officer that there was in fact probable cause to arrest for DUI.” Pl.’s Opp’n at 23-2 4. Plaintiff cites to Metropolitan Police Department (“MPD”) General Order 502.02 for this proposi tion. Id. MPD General Order 502.02 states that “[i]f a [Standardized Field Sobriety Tests ( “SFST”)] trained member is not available or the driver refuses to participate in a SFST, the m ember shall request through [the Office of Unified Communications] a supervisor respond to the s cene to ensure probable cause is established prior to an arrest.” Pl.’s Ex. E (MPD General Order), ECF No. [53-5], at 7. However, Plaintiff agrees with Defendants that the MPD General Order “does not specifically preclude arrest without the approval of an MPD officer.” Pl.’s Opp’n at 23. P laintiff does argue that General Orders “are the policy and proced ures that MPD officers are req uired to follow and put into practice in the course of exerci sing their duties,” but Plainti ff does not cite to any authority in support of this contention. Id. In any event, “[i]t is well-settled that evidence tending to sh ow a violation of an internal operati ng procedure or guideline exist ing at the state law level is not only insufficient to prove a violation of the United States Constitu tion, but it is also irrelevant to such a claim.” Fernandors v. District of Columbia , No. 02-2001, 2006 WL 449300, *1 (D.D.C. Feb. 23, 2006) (citing United States v. Moore, 36 F.3d 127, 1994 WL 535734, *2 (D.C. Cir. 1994)). Moreover, the Court notes that MPD General Order 502.02 does no t state that the absence of a supervisor’s input means that an officer does not have probable cause that a DUI has been committed.15 As the Court finds that Defendants Boutaugh and Weiss had “an o bjectively reasonable basis for believing that the f acts and circumstances surroundin g [Plaintiff’s] 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)), they are i mmune from Plaintiff’s su it for damages.
ii. Excessive Force Plaintiff next argues that the officers used excessive force wh en they pulled Plaintiff out of his car, twisted his left arm behind him, and his left arm brok e. Defendants contend that “Plaintiff has not presented evidence that excessive force was used by either Defendant in removing him from the vehicle or trying to handc uff him.” Defs.’ Mot. at 13

. It is well-established that police officers have the authority “to use some degree of physical coercion or threat thereof” in making an arrest. Graham v. Connor, 490 U.S. 386, 396 (1989). “ ‘[N]ot every push or shove, even if it may later see m unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id. (citation omitted). If the court “determines that the amount of force applied was objectively re asonable under the circumstances, the officer is entitled to qualified immunity.” Gee v. District of Columbia , No. 04-1797, 2005 WL 3276272, *2 (D.D.C. Aug. 22, 2005) (citing Graham, 490 U.S. at 396-397). To determine whether an officer’s use of force was reasonable, the court must consid er various factors including: “the severity of the crime at issue, whether the suspect poses an im mediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Although the severity of injury “is not by i tself the basis for deciding whether the force used was excessive, . . . it is a re levant factor.” Wardlaw , 1 F.3d at
1304 n.7.16 “The calculus of reasonableness must embody allowance for the f act that police officers are often forced to make split-second judgments—in circumstance s that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham , 490 U.S. at 396–97. A defendant’s motion for summary judgment on a § 1983 excessive force claim “is to be denied only when, view ing the facts in the record and all reasonable inferences derived therefrom in the light most favor able to the plaintiff, a reasonable jury could conclude that the excessiveness of the force is so a pparent that no reasonable officer could have believed in the lawfulness of his actions.” Wardlaw, 1 F.3d at 1303 (citing Martin v. Malhoyt, 830 F.2d 237, 253–54 (D.C. Cir. 1987)); see also Oberwetter v. Hilliard, 639 F.3d 545, 555 (D.C. Cir. 2011) (quoting Wardlaw, 1 F.3d at 1303). As an initial matter, the Court a ddresses the parties’ argument s regarding whether there is a factual dispute about Defendant Weiss’s involvement in removi ng Plaintiff from his car and twisting, and ultimately breaking, Plaintiff’s arm. Defendants argue that judgment should be entered in favor of Defendant Weiss because Plaintiff testified that Defendant Weiss “played no role in breaking his arm” and, at the summary judgment stage, t he facts must be viewed in the light most favorable to Plaintiff. Defs.’ Mot. at 13; 13 n.2; Defs.’ Resp. Stmt. ¶ 7. Defendants’ Statement of Material Facts to which there is No Genuine Disput e simply relies on Plaintiff’s testimony that Defendant Weiss was not involved in applying anyforce to Plaintiff’s arm. See Defs.’ Stmt. ¶ 22 (“Plaintiff testified that Defendant Weiss wa s not involved in applying any force to Plaintiff’s arm.”). However, despite Plaintiff’s depositiontestimony that Defendant Weiss was not involved in physica lly restraining Plain tiff, Plaintiff all eges in his Statement of Material Facts in Dispute that there is a dispute as to “[w]hether [O]fficer W eiss was involved with applying force to, and the breaking of Plaintiff’s arm, and Defendant’s [sic] Weiss’ location at the time his arm17 was broken.” Pl.’s Stmt. ¶ 7. Indeed, Defendants acknowledge in a footnote in their Motion for Summary Judgment that Defendant Weiss testified during his depo sition that he was “involved in attempting to assist Defendant Boutaugh with handcuffing Plaintiff.” Defs.’ Mot. at 13 n.2. The Court’s review of both officers’ deposition testimony indicates that they each testified that they pulled on Plaintiff’s left arm and that they were both holding on to Plaintiff’s left arm when they felt it break. Pl.’s Ex. B (Boutaugh Depo.), at 46:19-47:1; 49 :3-9; 50:2-4; Pl.’s Ex. D (Weiss Depo.), ECF No. [53-4], at 33:24-34:22. Given the stark incons istency in Plaintiff’s and Defendants’ deposition testimony, Plaintiff’s unwillingness to concede that there is not a dispute as to this material fact, and the Court’s obligation to view th e facts in the light most favorable to Plaintiff, the Court finds that there is a factual dispute abou t Defendant Weiss’s involvement in restraining Plaintiff and will thus not enter summary judgment in Defendant Weiss’s favor on the basis that he was not involved in the alleged excessive force. The Court does find, however, that the force used, whether by D efendant Boutaugh alone or Defendants Boutaugh and Weiss together, was not so excessive “that no reasonable officer could have believed in the lawfulness of his actions.” Wardlaw, 1 F.3d at 1303. Viewing the facts in the light most favorable to Plai ntiff, after Plaintiff’s vehicl e had been stopped by the officers, Defendant Weiss ordered Plainti ff to roll down his window, but since Plaintiff could not do so, Plaintiff opened his driver sid e door. While Defendant Weiss checked Plaintiff’s license and registration back at the squad car and called for a Field Sobri ety officer, Plaintiff kept his driver side door open and spoke to Defendant Boutaugh through the open window on the passenger side of the car where Defendant Boutau gh was standing. Defendant Bo utaugh asked Plaintiff if he would agree to take a breathalyzer test to which Plaintiff repl ied “no.” According to Plaintiff, he then told Defendant Boutaugh thathe was going to close his dri ver side door because he was cold18 and proceeded to close the door. Defendant Boutaugh, believing Plaintiff might attempt to drive away, immediately ran to the driver side of the car, opened the driver side door, and pulled Plaintiff out of the vehicle by his left arm. 8 Defendant Boutaugh, with the assistance of Defendant Weiss, bent and twisted Plaintiff’s arm behind his back while applying pressure to Plaintiff’s arm. Plaintiff’s arm then broke and t he officers let go of his arm. Several factors suggest that Defendants’ use of force was not s o excessive that no reasonable officer could have believed in the lawfulness of his actions. First, the officers could have reasonably believed that Plaintiff was trying to resist or escape when he closed the door of his vehicle. Plaintiff had just refused to cooperate and take a breathalyzer test. By then closing his door, Plaintiff had also eff ectively refused to obey Defendant Weiss’s order to open his driver’s side window since Plaintiff had opened his door in lieu of his window and Plaintiff had not been told that he could close the door. Although Plaintiff alleges that he told Officer Boutaugh that he was closing his door “because he was cold,” nothing in the reco rd indicates that the officers heard Plaintiff explain why he was closing the door. Even if they di d hear Plaintiff, it was not unreasonable for Officer Boutaugh t o believe that Plaintiff was actually closing his door in an attempt to drive away. See Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (“Police officers have authority to use ‘some degree of physical coercio n’ when arresting a suspect, and [appellant’s] refusal to obey [the officer’s] order prior to hi s arrest suggested that he might try to

8 Although the Court does not rely on these facts since they are disputed, for the sake of completeness, the Court notes that Defendant Boutaugh testified at deposition that after Plaintiff closed the driver side door, Defendant Boutaugh told Plaintiff to keep the door open at which point Plaintiff opened the door back up, but then closed the door aga in. Defendant Boutaugh further testified that he then walked to the driver side of the car and tried to open Plaintiff’s driver side door, but it was locked and Plaintiff refused to open the door after Defendant Boutaugh again ordered him to open it. According to Defendant Boutaugh’s test imony, Plaintiff eventually opened the driver side door and Defendant Boutaugh pulled him out. Pl .’s Ex. B (Boutaugh Depo.), at 30:10-35:10.19 resist or escape.” (internal citation omitted)); Oberwetter , 639 F.3d at 555 (officer’s use of force was not excessive because officer was reasonably concerned abou t “interference or escape” after plaintiff refused to obey office r’s orders to stop dancing and leave the premises (citing Wasserman , 557 F.3d at 641)). Furthermore, the nature and degree of the “physical coercion” t he officers used to restrain Plaintiff was “not markedly diffe rent from what we would expect in the course of a routine arrest.”
Id . Indeed, the action of pulling a person out of his or her car , bending the person’s arm behind his or her back, and applying pressure, as P laintiff alleges th e officers here di d, is regularly found not to be excessive force for effectuating an arrest. See id. at 548 (holding that officer did not use excessive force by “ripping apart [plaintiff’s] earbud, shoving her against a pillar, and violently twisting her arm” when plaintiff refused officer’s order to stop dancing and leave the Jefferson Memorial at night); Wasserman , 557 F.3d at 641 (holding that o fficer did not use excessive f orce by “forcefully press[i ng] upwards on [plaintiff’s] arm before h andcuffing him, causing him pain” when plaintiff had refused officer’s order to stop and answer s ome questions, but was “not moving or offering any resistance” after officer first touched his lef t shoulder); Martin , 830 F.2d at 262 (holding that officer who believe d plaintiff was going to flee in his car did not use excessive force by “brutally grabb[ing] [plain tiff] about [the] waist, . . . th r[owing] [him] back into [his] driver seat . . . [,] slamm[ing] [the] door on one of [plaintiff’s] legs,” and later “grabb[ing] [plaintiff’s] arms[,] pull[ing] them behind [plaintiff’ s] back[,] and immediately pla c[ing] [plaintiff] in handcuffs while pushing [him] up against [the] limousine,” aggravating plaintiff’s previous shoulder injury); cf. Johnson v. District of Columbia , 528 F.3d 969, 974 (D.C. Cir. 2008 ) (holding that a “reasonabl e officer would not have repeatedly kicked the surrendering suspe ct in the groin”). Courts have found such force not to be excessive even when the individual b eing arrested has not resisted or20 attempted to flee. See, e.g., Robinson v. District of Columbia , No. 03-1455, 2006 WL 2714913, *4 (D.D.C. Sept. 22, 2006) (holding that officer did not use excessive force by pushing plaintiff, shoving him onto the hood of his car, and holding plaintiff dow n while putting handcuffs on plaintiff’s wrists, even though plaintiff did not resist or att empt to flee). The only fact that gives the Court pause is the fact that Plain tiff’s arm was broken as a result of the force used by the officers. However, this is the only fact suggesting that the force used by the officers may have been excessive. The United State s Court of Appeals for the District of Columbia Circuit has explaine d that the severity of the inju ry itself is not a basis for deciding whether the force used was excessive; it is only a factor to co nsider in light of other factors.
Wardlaw , 1 F.3d at 1304 n.7 (“Although th e severity of [plaintiff’s] i njuries is not by itself the basis for deciding whether the force used was excessive, it doe s provide some indication of the degree of force [the officer] used. Thus, it is a relevant factor under a ‘test of reasonableness’ ”);
Oberwetter , 639 F.3d at 556 (explaining that the fact that the officer di d not cause plaintiff any serious bodily injury “tends to confirm that the use of force w as not excessive”). As the other factors considered by the Court suggest that the officers had a reasonable concern about escape and executed a reasonable maneuver for subduing an individual—e ven an individual who is not resisting as Plaintiff claims he was not—the Court finds that t he officers could have reasonably believed in the lawfulness of t heir actions eve n though Plaintiff’s arm was broken. 9 Accordingly, the Court grants Defendants summary judgment on Plaintiff’s § 1 983 excessive force claim.

9 Although the Court does not rely on these facts since they are disputed, for the sake of completeness, the Court notes that the officers testified at de position that once Plaintiff was pulled out of his vehicle he resisted the officers’ attempts to restra in and handcuff him by “flailing” his right arm and “torqueing” his body. Pl.’s Ex. D (Weiss Depo.), at 30:18-31:5; Pl.’s Ex. B (Boutaugh Depo.), at 36:12-39:20.21 B. Plaintiff’s Common Law Claims The Court has authority to exer cise supplemental jurisdiction o ver Plaintiff’s remaining common law claims pursuant to 28 U.S.C. § 1367(a), which potent ially confers jurisdiction over “all other claims that are so related to claims in the action w ithin such original jurisdiction that they form part of the same case or controversy under Article II I of the United States Constitution.” However, the statute also provides that “[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district c ourt has dismissed all claims o ver which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”
Id. § 1367(c). The Court finds it most appropriate to abstain fro m exercising supplemental jurisdiction over Plaintiff’s co mmon law claims pursuant to §§ 1367(c)(3) and (4). First, the Court has resolved and dismissed Plai ntiff’s § 1983 claims, the only claims over which the Court had original jurisdiction in this case. Second , the Court finds that there are compelling reasons for not exerc ising jurisdiction over these c laims and allowing the local court system to decide what are ultimately local issues. Specificall y, while it is clear that a violation of MPD General Order 502.02 does not impact the Court’s Fourth Ame ndment analysis, it is less clear whether such a violation would impact Plaintiff’s common law claims. The parties have not directed the Court to any case law—nor has the Court found any— analyzing the impact of an officer’s violation of a General Order on the officer’s probabl e cause determination or on the general legality of the arrest. Without such guidance, the Cou rt finds it most appropriate for the local court system to take the lead in determining the impact o f a violation of a local operating procedure on a local cause of action relating to an arrest of l ocal interest. As Plaintiff’s remaining22 common law claims are all substantially factually intertwined, the Court shall decline to exercise supplemental jurisdiction over any of these claims. By declining to exercise jurisdiction over these claims the Cou rt does not seek to suggest that these common law claims coul d not be decided by an appropr iate motion before the local court. Instead, the Court is only finding that it is most appropriate to decline supplemental jurisdiction over Plaintiff’s remaining common law claims pursu ant to §§ 1367(c)(3) and (4). See Araya v. JPMorgan Chase Bank, N.A. , 775 F.3d 409, 417 (D.C. Cir. 2014). The Court notes that Plainti ff will not be prejudiced by the Co urt’s dismissal of Plaintiff’s common law claims at this stage o f litigation because the statu te of limitations for any claim over which the Court has supplemental jurisdiction “shall be tolled while the claim is pending and for a period of 30 days after it is d ismissed unless State law prov ides for a longer tolling period.” 28 U.S.C. § 1367(d).
IV. CONCLUSION For the foregoing reasons, the Court GRANTS summary judgment in Defendants’ favor as to Plaintiff’s § 1983 claims against Defendants Boutaugh and We iss (Count I). The Court declines to exercise supplemental jurisd iction over Plaintiff’s common l aw claims and, therefore, DISMISSES WITHOUT PREJUDICE Plaintiff’s assault and battery, fa lse arrest/false imprisonment, and intentional in fliction of emotional distress claims. Accordingly, this case shall be DISMISSED in its entirety. An appropriate Order accompani es this Memorandum Opinion.

____/s/________________________ COLLEEN KOLLAR-KOTELLY United States District Judge