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 Columbia and Metropolitan Police 

Department Officers Joshua Boutaugh and Michael Weiss, asserting violations of Plaintiff’s civil 

rights, in addition to common law tort claims in connection with a traffic stop during which 

Plaintiff alleges his arm was broken. Presently before the Court is Defendants’ Motion for 

Summary Judgment. Upon consideration of the pleadings,1

 the relevant legal authorities, and the 

record as a whole, the Court finds Defendants are entitled to qualified immunity from Plaintiff’s 

42 U.S.C. § 1983 unlawful arrest and excessive force claims. The Court declines, however, to 

exercise supplemental jurisdiction over Plaintiff’s common law assault and battery, false 

arrest/false imprisonment, and intentional infliction of emotional distress claims and, therefore, 

                                                             1

 Defendants’ Motion for Summary Judgment (“Defs.’ Mot.”), ECF No. [52]; Defendants’ 

Statement of Material Facts to which there is No Genuine Dispute (“Defs.’ Stmt.”), ECF No. [52-

1]; Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“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 Judgment (“Defs.’ Reply”), ECF No. 

[54]; Defendants’ Response to Plaintiff’s Statement of Material Facts in Dispute (“Defs.’ Resp. 

Stmt.”), ECF No. [54-1]. 
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dismisses without prejudice these claims. Accordingly, Defendants’ Motion for Summary 

Judgment is GRANTED. 

I. BACKGROUND 

At the outset, the Court notes that Plaintiff has failed to comply with the Federal Rules of 

Civil Procedure and the Local Civil Rules in submitting his Statement 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 whether 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 Statement 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’ Statement of Material Facts as 

conceded to the extent Plaintiff has failed to respond to certain factual allegations. See LCvR 

7(h)(1) (“In determining a motion for summary judgment, the court may assume that facts 

identified by the moving party in its statement of material facts 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 party’s assertion of fact as required by Rule 

56(c), the court may . . . consider the fact undisputed for purposes of the motion”). 

Although Plaintiff’s noncompliance with the Rules has made resolution 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 Opposition. Accordingly, the Court will 

take Defendants’ lead and rely on the facts as stated by Plaintiff. 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 this case than Plaintiff’s Statement. The 
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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 observed Plaintiff driving 

along Brentwood Road, Northeast, in Washington, D.C. Defs.’ Stmt. ¶ 2. Defendants Weiss and 

Boutaugh “believed Plaintiff was driving erratically, and observed 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 violations and claims that “he did 

not swerve out of his lane and had no problems maintaining control of his vehicle at all times.” 

Pl.’s Stmt. ¶ 1. Plaintiff “submits the most that Defendants could have observed on that evening 

as they were driving behind him, was his car hesitating on a couple of occasions due to a 

transmission problem.” Pl.’s Opp’n at 13 (citing Pl.’s Ex. A (Jackson Depo.), ECF No. [53-1], at 

182:10-183:9); Defs.’ Stmt. ¶ 4 (citing to Defs.’ Ex. C (Jackson Depo.), ECF No. [52-4], at 23:19-

24:5). 

 After initiating a stop of Plaintiff’s vehicle, Defendant Weiss approached Plaintiff’s vehicle 

on the driver side, while Defendant Boutaugh approached the vehicle on the passenger side. Defs.’ 

Stmt. ¶ 7. Plaintiff was asked to roll down his driver side window, but Plaintiff explained to the 

officers that he was unable to do so because his window was broken. 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 the passenger side of Plaintiff’s vehicle. Id. ¶¶ 10-12. Defendant 

Boutaugh “believed that Plaintiff’s words were slurred as he spoke and he was slow to respond to 

questions.” Id. ¶ 13. Plaintiff contends that his “speech was not slurred and he was not slow to 
4

respond to the officers’ questions.” Pl.’s Stmt. ¶ 3. Defendant Boutaugh explained to Plaintiff 

that a field sobriety officer had been contacted and would administer 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. Pl.’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 ultimately 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 to drive away.” Id. ¶ 17. Plaintiff 

contends that he informed Defendant Boutaugh that he was going to close his door “because he 

was cold.” Pl.’s Stmt. ¶ 6. Defendant Boutaugh then went to Plaintiff’s driver side door to place 

him under arrest. Defs.’ Stmt. ¶ 18. Defendant Boutaugh3 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 explains 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 time, yanking his arm up towards 

                                                             2

 Moreover, in Defendants’ Reply, Defendants appear to agree that Plaintiff was asked to 

take a breathalyzer test, but refused to submit to such a test. 

3 There is a factual dispute as to whether Defendant Weiss was involved in restraining 

Plaintiff when Plaintiff’s arm broke or whether he was still at the squad car. See Defs.’ Stmt. ¶ 

21; Pl.’s Stmt. ¶ 7. The Court will address the contours and impact 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 Boutaugh was restraining Plaintiff when 

his arm broke. 
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his shoulder area” and “pushing Plaintiff 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 Depo.), 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 dropped 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 station 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 suit on February 15, 2013, asserting eight causes of action; specifically, one 

count of deprivation of civil rights under color of law in violation 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 Plaintiff’s Opposition, Plaintiff contends that Defendant 

Boutaugh told Plaintiff that he didn’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 Plaintiff’s arm went limp and Defendant 

Boutaugh finally released the arm.” Pl.’s Opp’n at 7 (citing Pl.’s Ex. A (Jackson Depo.), at 51:19, 

55:6-8, 56:13-57:8, 58:2-59:22); Pl.’s Ex. C (Jackson Decl.)). However, Plaintiff’s cited 

deposition testimony and declaration do not support this factual allegation. Instead, Plaintiff 

testified that Defendant Boutaugh let go of Plaintiff’s arm once his arm broke and went limp and 

“drop[ped] to the left side of [his] body.” Pl.’s Ex. A (Jackson Depo.), at 58:17-59:7. Plaintiff 

testifies that Officer 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.
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The District of Columbia moved to dismiss Count I for failure to state a claim as to Defendant 

District of Columbia. The Court granted Defendants’ Motion to Dismiss and dismissed without 

prejudice Plaintiff’s § 1983 claims against Defendant District of Columbia. See Mem. Op. (June 

13, 2013), ECF No. [19]. Plaintiff subsequently sought leave to 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 Count I that the Court 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 asserts the following causes of actions 

against the following Defendants: (1) deprivation of civil rights under color of law in violation of 

42 U.S.C. § 1983 as to Defendants Weiss and Boutaugh (Count I); (2) assault/battery against 

Defendant Boutaugh and the District of Columbia; (3) intentional 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 properly 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 Defendants’ Motion for Summary Judgment as to all claims 

in Plaintiff’s Amended Complaint. As Plaintiff has filed an Opposition to Defendants’ Motion for 

Summary Judgment and Defendants filed a Reply, this Motion is now ripe for the Court’s review. 

II. LEGAL STANDARD 

Summary judgment is appropriate where “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary 
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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 governing 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 sufficient admissible evidence for a 

reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to 

specific parts of the record – including deposition testimony, documentary evidence, affidavits or 

declarations, or other competent evidence – in support of its position, or (b) demonstrate that the 

materials relied upon by the opposing party do not actually establish the absence or presence of a 

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis 

in the record cannot create a genuine dispute sufficient to survive 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 assertion of fact or fails to properly address 

another party’s assertion of fact,” the district court may “consider 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 inferences 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 justifiable inferences, summary judgment is inappropriate. Moore v. 

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine 

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether 
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it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-

52. In this regard, the non-movant must “do more than simply show 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 claims in his Amended 

Complaint. In his Opposition to Defendants’ Motion for Summary Judgment, Plaintiff concedes 

judgment on his malicious prosecution and abuse of process claim (Count V) as well as his 

negligence claims (Counts VI through VIII). Accordingly, the Court shall only address Plaintiff’s 

§ 1983 claims as they relate to Defendants Boutaugh and Weiss (Count I); Plaintiff’s 

assault/battery claim against Defendants Boutaugh and the District of Columbia (Count II); 

Plaintiff’s intentional infliction of emotional distress claim against all Defendants (Count III); and 

Plaintiff’s false arrest claim against all Defendants (Count IV). Ultimately, the Court finds 

Defendants are entitled to judgment on Plaintiff’s § 1983 claims. As to Plaintiff’s common law 

claims, the Court shall, in its discretion, 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 protected by the Constitution. 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 First, Fourth, Fifth, Sixth and 
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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 deprived Plaintiff of his Fourth 

Amendment rights. 

Plaintiff alleges that the Defendant officers violated the Fourth 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 Defendants are entitled to qualified 

immunity for their actions. 

A plaintiff may not recover under § 1983 if the defendant is entitled 

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 time of the challenged conduct, the 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) (quoting Anderson v. 

Creighton, 483 U.S. 635, 640 (1987)). The district court has the discretion to decide “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). 
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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 because they had probable 

cause to arrest Plaintiff and, thus, did not violate Plaintiff’s constitutional rights in arresting him. 

Specifically, Defendants contend that “where it is undisputed that the officers observed that 

Plaintiff had driven erratically, he appeared intoxicated, and Plaintiff stated that he would refuse 

sobriety testing, probable cause existed to arrest Plaintiff for driving under the influence.” Defs.’ 

Mot. at 8. Plaintiff responds that the “facts relevant to questions of probable cause and whether 

this was a lawful arrest are strongly contested in this case” and, thus, summary judgment is not 

appropriate as to this claim. Pl.’s Opp’n at 16. 

 “Because it is well-established that ‘an arrest without probable cause violates the [F]ourth 

[A]mendment,’ the defendant is entitled to qualified immunity only if ‘a reasonable officer could 

have believed that probable cause existed’ to arrest the plaintiff . . . .” 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 arrest is supported by 

probable cause if, ‘at the moment the arrest was made, . . . the facts and 

circumstances within [the arresting officers’] knowledge . . . were sufficient to 

warrant a prudent man in believing’ that the suspect has committed 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 original)). 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 probable cause is evaluated ‘from the 
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perspective of a reasonable officer on the scene, rather than with 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 Defendant officers did not have probable cause to conduct an 

investigatory stop of Plaintiff’s vehicle, nor did they have probable 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 Plaintiff’s vehicle because Plaintiff admits that he was “stalling,” 

“hesitat[ing],” and “lurch[ing]” as he drove along Brentwood Road. 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 observation is 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 investigative purposes if the officer 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 deposition 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 reason 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 detain him for further investigation] 

– A. Based on their written documentation, yes.”). 
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 As for the officers’ ultimate arrest of Plaintiff, Defendants argue that the facts known to 

the officers provided probable cause to arrest Plaintiff for either 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 [arresting] officers had probable cause 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 making the arrest need not be the 

criminal offense as to which the known facts provide probable cause.” 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 officers had probable cause to arrest 

Plaintiff for reckless driving or failure to obey. 

Pursuant to D.C. Code § 50-2201.05(b)(1)(A)(i), “[n]o person shall operate or be in 

physical control of any vehicle in the District . . . (II) While 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 asked 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 time of Plaintiff’s arrest. 

6

 Defendants also argue that it is undisputed that Plaintiff was answering questions slowly 

and with slurred speech even though Plaintiff specifically states 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 slurred 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 Plaintiff based on the facts known to 

the arresting officer and based on the officer’s perspective, not the plaintiff’s, this does not mean 

that a plaintiff cannot dispute the validity and veracity of the arresting officer’s alleged perception 

of the facts. Accordingly, the Court will not consider this fact 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 properly be considered against him 

as evincing consciousness of guilt.”); D.C. Code § 50-1902 (2001) (“Any person . . . who operates 

a motor vehicle within the District shall be deemed to have given 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] shall be admissible in any civil or 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 refusal to submit to a blood-alcohol 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 Plaintiff 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 plaintiff’s operation of his vehicle, the officer’s scent of alcohol 

emanating from the vehicle and plaintiff’s refusal to take a field 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 erratic 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 Plaintiff 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 finding that the officers had probable 

cause for Plaintiff’s arrest. 

Plaintiff principally argues that it was “improper for Defendants to arrest Plaintiff prior to 

obtaining an official opinion and authorization from a certified field sobriety officer that there was 

in fact probable cause to arrest for DUI.” Pl.’s Opp’n at 23-24. Plaintiff cites to Metropolitan 

Police Department (“MPD”) General Order 502.02 for this proposition. 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 member shall request through [the 

Office of Unified Communications] a supervisor respond to the scene 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. Plaintiff does argue that General 

Orders “are the policy and procedures that MPD officers are required to follow and put into 

practice in the course of exercising their duties,” but Plaintiff does not cite to any authority in 

support of this contention. Id. In any event, “[i]t is well-settled that evidence tending to show a 

violation of an internal operating procedure or guideline existing at the state law level is not only 

insufficient to prove a violation of the United States Constitution, 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 not 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 objectively reasonable 

basis for believing that the facts and circumstances surrounding [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 immune from Plaintiff’s suit for damages. 

ii. Excessive Force 

Plaintiff next argues that the officers used excessive force when they pulled Plaintiff out of 

his car, twisted his left arm behind him, and his left arm broke. 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 handcuff 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 seem 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 reasonable 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 consider various factors including: “the 

severity of the crime at issue, whether the suspect poses an immediate 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 itself the basis for 

deciding whether the force used was excessive, . . . it is a relevant factor.” Wardlaw, 1 F.3d at 

1304 n.7. 
16

“The calculus of reasonableness must embody allowance for the fact that police officers 

are often forced to make split-second judgments—in circumstances 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, viewing the facts in the record and all 

reasonable inferences derived therefrom in the light most favorable to the plaintiff, a reasonable 

jury could conclude that the excessiveness of the force is so apparent 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 addresses the parties’ arguments regarding whether there is 

a factual dispute about Defendant Weiss’s involvement in removing 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, the 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 Dispute simply relies on Plaintiff’s 

testimony that Defendant Weiss was not involved in applying any force to Plaintiff’s arm. See 

Defs.’ Stmt. ¶ 22 (“Plaintiff testified that Defendant Weiss was not involved in applying any force 

to Plaintiff’s arm.”). However, despite Plaintiff’s deposition testimony that Defendant Weiss was 

not involved in physically restraining Plaintiff, Plaintiff alleges in his Statement of Material Facts 

in Dispute that there is a dispute as to “[w]hether [O]fficer Weiss was involved with applying force 

to, and the breaking of Plaintiff’s arm, and Defendant’s [sic] Weiss’ location at the time his arm 
17

was broken.” Pl.’s Stmt. ¶ 7. Indeed, Defendants acknowledge in a footnote in their Motion for 

Summary Judgment that Defendant Weiss testified during his deposition 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 inconsistency 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 the facts in the light most favorable to 

Plaintiff, the Court finds that there is a factual dispute about 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 Defendant 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 Plaintiff, after Plaintiff’s vehicle had been stopped by the officers, 

Defendant Weiss ordered Plaintiff to roll down his window, but since Plaintiff could not do so, 

Plaintiff opened his driver side door. While Defendant Weiss checked Plaintiff’s license and 

registration back at the squad car and called for a Field Sobriety 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 Boutaugh was standing. Defendant Boutaugh asked Plaintiff if he 

would agree to take a breathalyzer test to which Plaintiff replied “no.” According to Plaintiff, he 

then told Defendant Boutaugh that he was going to close his driver side door because he was cold 
18

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 the officers let go of his arm. 

Several factors suggest that Defendants’ use of force was not so 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 effectively 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 record indicates that the officers heard 

Plaintiff explain why he was closing the door. Even if they did hear Plaintiff, it was not 

unreasonable for Officer Boutaugh to 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 coercion’ when arresting a suspect, and 

[appellant’s] refusal to obey [the officer’s] order prior to his 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 again. 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 testimony, 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 about “interference or escape” after 

plaintiff refused to obey officer’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” the officers used to restrain 

Plaintiff was “not markedly different 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 Plaintiff alleges the officers here did, 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 officer did not use excessive force 

by “forcefully press[ing] upwards on [plaintiff’s] arm before handcuffing him, causing him pain” 

when plaintiff had refused officer’s order to stop and answer some questions, but was “not moving 

or offering any resistance” after officer first touched his left shoulder); Martin, 830 F.2d at 262 

(holding that officer who believed plaintiff was going to flee in his car did not use excessive force 

by “brutally grabb[ing] [plaintiff] about [the] waist, . . . thr[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 plac[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 “reasonable 

officer would not have repeatedly kicked the surrendering suspect in the groin”). Courts have 

found such force not to be excessive even when the individual being arrested has not resisted or 
20

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 down while putting handcuffs on 

plaintiff’s wrists, even though plaintiff did not resist or attempt to flee). 

The only fact that gives the Court pause is the fact that Plaintiff’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 States Court of Appeals for the District 

of Columbia Circuit has explained that the severity of the injury itself is not a basis for deciding 

whether the force used was excessive; it is only a factor to consider in light of other factors. 

Wardlaw, 1 F.3d at 1304 n.7 (“Although the severity of [plaintiff’s] injuries is not by itself the 

basis for deciding whether the force used was excessive, it does 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 did not cause plaintiff any 

serious bodily injury “tends to confirm that the use of force was 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—even an individual who is not 

resisting as Plaintiff claims he was not—the Court finds that the officers could have reasonably 

believed in the lawfulness of their actions even though Plaintiff’s arm was broken.9

 Accordingly, 

the Court grants Defendants summary judgment on Plaintiff’s § 1983 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 deposition that once Plaintiff was pulled 

out of his vehicle he resisted the officers’ attempts to restrain 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 exercise supplemental jurisdiction over Plaintiff’s remaining 

common law claims pursuant to 28 U.S.C. § 1367(a), which potentially confers jurisdiction over 

“all other claims that are so related to claims in the action within such original jurisdiction that 

they form part of the same case or controversy under Article III 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 court has dismissed all claims over 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 from exercising supplemental 

jurisdiction over Plaintiff’s common law claims pursuant to §§ 1367(c)(3) and (4). 

First, the Court has resolved and dismissed Plaintiff’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 exercising jurisdiction over these claims and allowing the local court 

system to decide what are ultimately local issues. Specifically, while it is clear that a violation of 

MPD General Order 502.02 does not impact the Court’s Fourth Amendment 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 probable cause determination or on the 

general legality of the arrest. Without such guidance, the Court finds it most appropriate for the 

local court system to take the lead in determining the impact of a violation of a local operating 

procedure on a local cause of action relating to an arrest of local interest. As Plaintiff’s remaining 
22

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 Court does not seek to suggest 

that these common law claims could not be decided by an appropriate 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 pursuant 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 Plaintiff will not be prejudiced by the Court’s dismissal of Plaintiff’s 

common law claims at this stage of litigation because the statute 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 dismissed unless State law provides 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 Weiss (Count I). The Court declines 

to exercise supplemental jurisdiction over Plaintiff’s common law claims and, therefore, 

DISMISSES WITHOUT PREJUDICE Plaintiff’s assault and battery, false arrest/false 

imprisonment, and intentional infliction of emotional distress claims. Accordingly, this case shall 

be DISMISSED in its entirety. 

An appropriate Order accompanies this Memorandum Opinion. 

____/s/________________________ 

COLLEEN KOLLAR-KOTELLY 

United States District Judge