UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 15-2147 (TJK) VERE O. PLUMMER, Plaintiff , v. DISTRICT OF COLUMBIA et al. , Defendants

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MEMORANDUM OPINION On July 4, 2014, Plaintiff Vere O. Plummer celebrated our Natio n’s independence, as many Americans do, by drinking alc oholic beverages at a friend’ s party. In the wee hours of July 5, Plummer decided to drive hi mself home. While trying to maneuver his car in the alley behind his house, Plummer struc k a neighbor’s garage. Other ne ighbors called the police, who found Plummer in his own open gara ge, unconscious at the wheel of his car. After a protracted encounter, the police arrested Plummer. Plummer filed this lawsuit agai nst Defendants the District of C olumbia (the “District”), the Metropolitan Police Departme nt of the District of Columbia (“MPD”), and the District of Columbia Fire Department (“DCF D”), as well as four first respon ders who Plummer asserts were involved in his arrest: Officer Sandro Lukanovic, Lieutenant Jo hn Kutniewski, Officer John F. Nelson, and Battalion Fire Chief Henry Welsh. Plummer claims, among other things, that his arrest violated the Fourth Amendment to the U.S. Constitution and the common law of the District of Columbia, and that th e District of Columbia neglige ntly maintained the alley behind his house. Defendants have move d for summary judgment. ECF No . 14. For the reasons set forth below, Defendants’ motion will be granted and judgment wi ll be entered in their favor.2 Factual and Procedural Background Plummer lives on Fairmont Street in the District of Columbia. 1 Pl.’s Resp. SoMF ¶ 1. Plummer’s garage, located on the rear of his lot, is detached f rom his home and opens onto an alley that runs parallel to Fairmont Street. Id. ¶ 20; see also Defs.’ Ex. 9 (Plummer 911 call) at 5:25-45 (explaining that Plummer’s garage is detached from his house). His neighbors’ garages face the same alley. Pl.’s Resp. SoMF ¶ 21. The garage direct ly across from Plummer’s belongs to a neighbor named Kenneth Taylor. Id. ¶ 7. On July 4, 2014, Plummer went to an Independence Day party at afriend’s house in Maryland. Id. ¶ 3. While conceding that he c onsumed alcohol that evening, P lummer claims that he had only “a couple of beers” (and possibly some spiked punch) and finished drinking in the early evening. See id. ¶ 4. Early in the morning of July 5, Plummer drove himself ho me and arrived sometime between 2:45 a.m. and 4:00 a.m. See id. ¶ 5; Pls.’ Opp’n at 2. In Plummer’s telling, his car became stuck in a pothole, and while trying to “rock” the car out, he struck Taylor’s garage. Am. Compl. ¶¶ 14-15; Defs.’ Ex. 1 (Plummer De p.) at 43:5-22, 46:1-22; Pl.’s Resp. SoMF ¶ 8. Another neighbor, Scott Landrum, called 911 to report the accid ent. Defs.’ Ex. 5 (Landrum 911 call) at 2:08-25, 4:20-32. Landrum told the 911 o perator that the car’s engine was still running, that smoke was rising from the tires, and that aman was unconscious behind the wheel of the car. Id. at 0:20-24, 1:28-56, 3:30-40. La ndrum then relayed that the m an had woken up and managed to park in his own garage. See id. at 6:25-40; see also Defs.’ Ex. 2

1 In deciding this motion, the Court relied on the following doc uments: ECF No. 1-1 (“Am. Compl.”); ECF No. 15-2 (“Defs.’ Br.”); ECF No. 14-1 (“Defs.’ So MF”); ECF Nos. 14-3 to 14- 18 (Defendants’ exhibits 1 through 16, each of which is cited a s “Defs.’ Ex. __”); ECF No. 18 at 3-22 (“Pl.’s Opp’n”); ECF No. 18 at 23-45 (“Pl.’s Resp. SoMF”); ECF No. 18 at 46-66 (Plaintiff’s exhibits 1 through 5, each of which is cited as “P l.’s Ex. __”); ECF No. 21 (“Defs.’ Reply”).3 (Landrum’s declaration) (confirming this account); Defs.’ Ex. 3 (declaration of a third neighbor) (similar). The unidentified dr iver turned out, of course, to b e Plummer, whose own deposition testimony explains that it took him some time to back into his own garage, that he fell asleep in the midst of that effort, and that he succeeded only after a ne ighbor woke him. See Defs.’ Ex. 1 (Plummer Dep.) at 60:6-61:22, 63:1-22. Police, firemen, and paramedics s ubsequently arrived in the all ey. Defs.’ Ex. 5 (Landrum 911 call) at 8:40-50; Defs.’ Ex. 2 ¶¶ 17-19; Defs.’ Ex. 3 ¶ 13; Defs.’ Ex. 7 (Nelson Dep.) at 13:13-14:3. Paramedics and fire officials were the first on th e scene. Defs.’ Ex. 2 ¶¶ 17-19; see Defs.’ Ex. 7 (Nelson Dep.) at 13: 13-14:3. Police officers then arrived as well, including two Defendants, Officer Lukanovic, see Defs.’ Ex. 6 (Lukanovic Dep.) a t 23:3-5, and Officer Nelson,

see Defs.’ Ex. 7 (Nelson Dep.) a t 13:13-17. Officer Nelson spoke with the fire officials, who reported that Plummer appeared to be intoxicated but had refuse d medical assistance. Id. at 14:4-8. Officer Nelson also, at so me point, interviewed Plumme r’s neighbors, who informed him—consistent with the 911 ca ll—that they had found Plummer un conscious with the engine running after striking Taylor’s g arage, and that Plummer had be en woken up and parked in his garage, where he had lost consciousness once more. See id. at 23:18-25:10; Defs.’ Ex. 2 ¶ 19. The police officers persona lly observed damage to both Taylor’s garage and Plummer’s car. See Defs.’ Ex. 7 (Nelson Dep.) at 19: 18-20:16; Defs.’ Ex. 8 (Arring ton Dep.) at 31:4-12. They also observed, through the open garage do or, Plummer unconscious aga in behind the wheel of his car.
See Defs.’ Ex. 7 (Nelson Dep.) at 15:15-16, 17:1-4. Two officers testified that Plummer’s engine was running at this time, see id. ; Defs.’ Ex. 6 (Lukanovic Dep.) at 62:16-17, although the recor d4 is not entirely clear on this point. 2 Based on these facts, Officer N elson concluded that Plummer was intoxicated. Defs.’ Ex. 7 ( Nelson Dep.) at 15:11-18, 47:1- 9. Officers entered the garage and woke Plummer by knocking on his window. Defs.’ Ex. 6 (Lukanovi c Dep.) at 62:16-19. Once awake, Plummer appeared to the officers to be confused and disoriented. See id. at 63:15-64:4; Defs.’ Ex. 7 (Nelson D ep.) at 15:10-16:3. Plummer mumbled unintelligibly and struggled to keep his eyes open. See Defs.’ Ex. 8 (Arrington Dep.) at 119:14-20. Plummer also occasionally “revved” or “cranked” up his engine. Id. at 119:21-120:9. At a fire official’s request, Plummer shifted the car’s transmission into park. Def s.’ Ex. 10 (Welsh Dep.) at 16:5- 10. At some point, Plummer attempted to close the garage door, prompting officers to prevent it from closing on top of them. See Defs.’ Ex. 7 (Nelson Dep.) at 137:1-10. As the encounter was unfoldi ng, Plummer called 911 to complain about the officers’ presence in his garage. See Defs.’ Ex. 9 (Plummer 911 call) a t 0:01-1:00. The officers, h e said, may have damaged the garage when they prevented the door from c losing. See id. at 2:34-52, 12:25-56. “I’m under siege!” he said. Id. at 13:05-11. The 911 operato r—who had also taken Landrum’s call—asked Plummer whether he had hit someone’s garag e. Id. at 1:20-25. “No I did not,” Plummer answered. Id. at 1:25-27. “I’m in my garage, no vehicle has crashed. There’s no crash here.” Id. at 3:07-12. After speaking withthe officers, Plummer told th e 911 operator, “These people are lyi ng to me, they’re telling me I h it a garage.” Id. at 7:27-7:31. The

2 While Officer Nelson initially t estified that the engine was r unning when he arrived, he later said that he could not specificall y recall whether the engine w as running then. See Defs.’ Ex. 7 (Nelson Dep.) at 101 :10-15. And Officer Nelson wrote in the arrest report that Plummer subsequently “started” his car in the officers’ presence, which may (though does not necessarily) imply that the engine was off when the officers arrived. Defs. ’ Ex. 11 at 4. Plummer apparently disputes that his engine was r unning when the officers arrived, although in doing so he does not cite to any specific portion of the record. See Pl.’s Resp. SoMF ¶¶ 56, 76. The Court will assume that this fact is disput ed, but it is immaterial: the Co urt’s analysis does not depend on whether the engine was runni ng when the officers arrived.5 911 operator, ever helpful, told P lummer, “Just be mindful thatyou’re on a recorded line.” Id. at 7:45-7:52. “Just do what the police ask you to do,” the operat or suggested. Id. at 9:46-49. “Are you crazy?” Plummer responded. Id. at 9:49-52. Officials on the scene, includi ng Chief Welsh of the fire depar tment (one of the Defendants), tried to coax Plumme r out of his vehicle. Accordi ng to Chief Welsh, Plummer appeared to be either intoxicate d or having a medical emergency . Defs.’ Ex. 10 (Welsh Dep.) at 18:5-15. In particular, Chief Wel sh was concerned that Plummer might be having a “diabetic emergency” and felt that it was his “duty to act” for the welfare of both Plummer and, in the event Plummer chose to drive away, others as well. Id. at 19:2-9, 20:16- 21:4, 27:4-5. Chief Welsh urged Plummer to exit the car so that officers could chec k his blood-sugar level. Id. at 19:18-20. At some point, 3 officers did in fact test his blood sugar, which was normal. Defs.’ Ex. 10 (Welsh Dep.) at 24:5-8; Pl.’s Resp. SoMF ¶ 94. After Plummer refused to exit the vehicle despite repeated requ ests, fire officials broke the window of Plummer’s car. Id. at 27:16-28:12. Plummer then e ither exited or was removed from the vehicle. See Defs.’ Ex. 6 (Lukanovic Dep.) a t 57:16-58:7; Am. Compl. ¶ 30. Because there was no officer on the scene who was certified to administ er a field sobriety test, police did not test Plummer’s sobriety the re. Defs.’ Ex. 7 (Nelson Dep.) at 22:9-11, 42:11-14. Plummer was arrested for having failed t o leave identification after co lliding with Taylor’s garage, in violation of D.C. Code § 50- 2201.05c, but not for driving while intoxicated. Id. at 42:15-20; Defs.’ Ex. 11 (arrest report) at 2. Plummer subsequently faile d a field sobriety test at the police

3 In his response to Defendants’ s tatement of mater ial facts, Pl ummer does not dispute that his blood sugar was tested after he exited the vehicle. Pl.’s Resp. SoMF ¶ 94. But in his dep osition, he testified that he allowed fir e officials to test his blood s ugar while still in his car, before officials resorted to breaki ng his window. Pl.’s Ex. 4 (Plumme r dep.) at 80:2-10. The Court assumes this fact is dispute d, but it does not alter the outcom e.6 station. See Defs.’ Ex. 12 (declaration of o fficer who administered sobriety test). Officer Nelson testified that he should have als o arrested Plummer for driving while intoxicated, and that his failure to do so was a “rookie” mistake. Defs.’ Ex. 7 (Nelson Dep.) at 42:15-20, 53:12-54:3. Nonetheless, Plummer was never charged with drunk driving. Id. at 22:12-14. All charges against Plummer arising from the incident were ultimately dismi ssed just before trial. Am. Compl. ¶ 33. Even before he was arrested, Plummer had his heart set on litig ation. “I’m gonna sue the damn D.C. government royally,” h e told the 911 operator. Defs. ’ Ex. 9 (Plummer 911 call) at 6:16-20. “You all gonna pay me. . . . I think they call that false imprisonment.” Id. at 15:41-55. And Plummer did indeed bring false imprisonment claims—as well as several others—against the District when he filed this l awsuit in the Superior Court o f the District of Columbia on July 5, 2015. ECF No. 3-1 (Superior Court record) at 99-109. After re ceiving two extensions of time to serve his original complaint, a nd briefly having his case dismi ssed for failure to serve process (an order that was later vacated), Plummer ultimately served his am ended complaint (the operative pleading). See id. at 23-40, 84-97. Defendants, asse rting federal question juris diction, timely removed the action to this Court in December 2015. ECF No. 1 ( notice of removal). After discovery, Defendants filed the instant motion for summary judg ment. ECF No. 14. Legal Standard Under Rule 56, a court must grant summary judgment “if the mova nt shows that there is no genuine dispute as to any material fact and the movant is en titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summ ary judgment is appropriate ly granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.- Islamic Relations Action Network, Inc. , 826 F.3d 492, 496 (D.C. Cir. 2016). Courts “are not to7 make credibility determinations or weigh the evidence.” Id. (quoting Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported mot ion for summary judgment; the requirement is that there be no genuine issue of materialfact.” Id. (alteration in original) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986)). “The movant bears the initial burden of demonstrati ng that there is no genuine issue of material fact.” Montgomery v.
Risen , 875 F.3d 709, 713 (D.C. Cir. 2017). “In response, the non-mo vant must identify specific facts in the record to demonstrat e the existence of a genuine i ssue.” Id. Analysis As explained below, Defendants are entitled to judgment in thei r favor on all seven counts of Plummer’s complaint.
A. Counts II, IV and VI: Trespass, Destruction of Property, Negligence and Malicious Prosecution Count II of Plummer’s complaint i s for “Trespass and Destructio n of Property/Vicarious Liability,” and is brought against MPD and DCFD. Am. Compl. at 10. Counts IV and VI of Plummer’s complaint, for negligence and malicious prosecution, respectively, are brought against MPD. Id. at 11; id. ¶ 64. Defendants argue that th ey are entitled to summary judg ment on all claims against MPD and DCFD because those entities do no t have the capacity to be sued in their own names under District of Columbia law. Defs.’ Br. at 10-13; see, e.g. , Silver v. D.C. Metro. Police Dep’t , 939 F. Supp. 2d 20, 22 (D.D.C. 2013); Ray v. District of Columbia , 535 A.2d 868, 869 n.2 (D.C. 1987). Plummer concedes that those ent ities cannot be sued. See Pl.’s Opp’n at 4. Because Counts II, IV and VI are asserted only aga inst MPD and DCFD, these claims fail.8 Plummer suggests in his briefing that his complaint should be c onstrued liberally such that each count is asserted again st each Defendant against whic h he may possibly have a claim.
See id. at 11. But he is not proceeding pro se and must comply with the normal pleading standards under Federal Rule of Civil Procedure 8(a), which req uires the complaint to explain “which defendants committed each violation.” Cheeks v. Fort Myers Constr. Corp. , 71 F. Supp. 3d 163, 169 (D.D.C. 2014). And his complaint does just that. Count II asserts “separate causes of action against MPD and DCFD fo r the conduct of its defendant employees.” Am. Compl. at 10. Count IV asserts “a separate cause of action against defen dant MPD.” Id. at 11. And Count VI is based on the “institution of criminal proceedings against Plaintiff by the MPD,” without even mentioning any other Defendant. Id. ¶ 64. Even now, Plummer ha s not sought leave to further amend his complaint, or identified in his opposition pa pers any other Defendant he thinks was responsible for the malic ious prosecution alleged in Count VI. Having clearly pleaded Counts II, IV and VI against onl y MPD and DCFD, Plummer cannot avoid summary judgment now that it is clear that those entities are not proper defendants. And in any event, in his opposition, Plummer has failed to specifically identify any evi dence sufficient to create a genuine issue of material fact i n support of these claims. The refore, the Court will enter judgment for Defendants on Counts II, IV and VI.
B. Count III: Deprivation of Civil Rights Plummer brings Count III unde r 42 U.S.C. § 1983, claiming that MPD and three of the individual defendants (Lukanovic , Kutniewski, and Nelson) violated his rights under the Fourth and Fifth Amendments to the U.S. Constitution by arresting him without a warrant. See Am. Compl. ¶ 49. As explained above, the claim against MPD must be dismissed. See, e.g. , Silver , 939 F. Supp. 2d at 22. To prevail on his § 1983 claim against the individual defendants, Plummer must establish that (1 ) “a person acting under color of state law” committed (2) a9 “violation of a right secured by the Constitution and laws of the United States.” West v. Atkins , 487 U.S. 42, 48 (1988). Defendants ar gue that Plummer has fail ed to show a constitutional violation or, alternatively, tha t the officers enjoy qualified immunity. See Defs.’ Br. at 16-26. The Court agrees that Plummer has not established a constitutio nal violation. 4 This claim must be analyzed unde r the Fourth Amendment, not the Fifth Amendment. “Where a particular Amendment pr ovides an explic it textual sour ce of constitutional protection against a particular sort of gove rnment behavior, that Amendmen t, not the more generalized notion of substantive due process, must be the guide for analyz ing these claims.” Elkins v. District of Columbia , 690 F.3d 554, 562 (D.C. Cir. 2012) (quoting Albright v. Oliver , 510 U.S. 266, 273 (1994)) (internal quotation marks omitted). Plummer a lleges an unlawful seizure of his
person, see Am. Compl. ¶ 49, and so the FourthAmendment controls this cla im. See Graham v.
Connor , 490 U.S. 386, 394-95 (1989). “A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence.” District of Columbia v. Wesby , 138 S. Ct. 577, 586 (2018). When determining whether an officer had proba ble cause, courts “examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reas onable police officer, amount to probable cause.” Id. (quoting

4 The Court notes that it is typi cally more appropriate to addre ss qualified immunity before passing on a constitutional issue. Ali v. Rumsfeld , 649 F.3d 762, 772-73 (D.C. Cir. 2011) (citing Pearson v. Callahan , 555 U.S. 223 (2009)). But the Court concludes that, in this case, considerations of judicial economy militate in favor of address ing the underlying constitutional violation Plummer has alleged. Plummer’s constitutional and co mmon law claims raise similar questions about the lawfulness of his arrest. Additionally, Pl ummer asserts a claim for municipal liability in Count V based on the s ame underlying constitutiona l violations, and municipalities do not enjoy qualified immunity. See Pearson , 555 U.S. at 242-43. Thus, deciding the constitutional claims against the individual defendants on the basis of qualifie d immunity would not avoid addressing the underlyi ng issues concerning the lawfu lness of Plummer’s arrest.10 Maryland v. Pringle , 540 U.S. 366, 371 (2003)) (internal quotation marks omitted). Probable cause is “‘a fluid concept’ that is ‘not readil y, or even usefu lly, reduced to a neat set of legal rules.’” Id. (quoting Illinois v. Gates , 462 U.S. 213, 232 (1983)). “It ‘require s only a probability or substantial chance of crimi nal activity, not an actual showi ng of such activity.’” Id. (quoting
Gates , 462 U.S. at 244 n.13). The government bears the burden of sh owing probable cause when seeking to justify a warrantless arrest. Carr v. District of Columbia , 587 F.3d 401, 408-09 (D.C. Cir. 2009) (citing Dellums v. Powell , 566 F.2d 167, 175-76 (D.C. Cir. 1977)). A n arrest is valid even if probable cause existe d only for a crime different than the one actually charged. See
United States v. Bookhardt , 277 F.3d 558, 564-67 (D.C. Cir. 2002). In this case, the offense mostobviously applicable to Plummer’ s conduct was operating a motor vehicle while impaire d, in violation of D.C. Code § 50-22 06.14: “No person shall operate or be in physical control of any ve hicle in the District while the person’s ability to operate or be in physical control of a vehicle i s impaired by the consumptionof alcohol or any drug or any combination thereof.” The statute requires only “that level of impairment at which a person is appreciably less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mec hanism as a modern automobile with safety to himself and the public.” Muir v. District of Columbia , 129 A.3d 265, 272 (D.C. 2016) (quoting Taylor v. District of Columbia , 49 A.3d 1259, 1267 (D.C. 2012)). In addition, a person need not be ac tively driving to be in “physi cal control” of a ve hicle. Rather, courts have found such control wh ere an unconscious defendant w as “alone in his [parked] car and behind the steering wheel” and “the ignition keys were in h is pocket.” Bell v. District of
Columbia , 132 A.3d 854, 857 (D.C. 2016). “In that position and with th e keys at hand, [the defendant] was capable of starting the vehicle should he have awakened and, in his impaired11 state, made a decision to drive.” Id. Moreover, “where the language of a motor vehicle statute does not restrict its applica tion to public s treets and highway s the statute app lies throughout the jurisdiction and extends to both public and private property.” Henig v. District of Columbia , 213 A.2d 824, 825-26 (D.C. 1965); see also Taylor v. United States , 662 A.2d 1368, 1370-71 (D.C. 1995) (holding that a statute pr ohibiting unlicensed drivers fr om being in control of a vehicle applied on both public and private pr operty). The statute at i ssue here, D.C. Code § 50-2206.14, is not limited to public highways , and thus prohibits the impai red operation of a motor vehicle on both public and private property. Defendants’ evidence easily est ablishes that officers on the sc ene had probable cause to believe that Plummer was vi olating D.C. Code § 50-2206.14 in th eir presence. One of Plummer’s neighbors had called 911 t o report that someone, afte r crashing into Taylor’s garage, was unconscious in the alley in arunning car, an d that this pe rson, after being awoken, backed into his own garage. See Defs.’ Ex. 2 ¶ 12; Defs.’ Ex. 5 (Landrum 911 call). When the officers arrived on the scene, they observe d damage to both Taylor’s gar age and Plummer’s car, and saw Plummer slumped behind the wheel of his car. See Defs.’ Ex. 7 (Nelson Dep.) at 16:17-17:4, 20:1-16; Defs.’ Ex. 8 (Arrington D ep.) at 31:4-12. These facts provided probable cause to believe that Plummer was vi olating D.C. Code § 50-2206.14. Fir st, he was in physical control of his vehicle under the law of the District of Columbia. And sec ond, common sense suggested he was impaired by alcohol: people i n full control of their facult ies generally do not nap in their cars just after crashing into thei r neighbors’ garages. Indeed, fir e officials reported to the officers that Plummer appeared to be intoxicat ed. Defs.’ Ex. 7 (Nelson Dep.) at 14:4-8. Moreover, the timing of the incident—in the wee hours of the night of July 4- 5, a night notorious for drunk driving—suggested as much. And af ter the officers entered the garage, further events reinforced12 their suspicions. When the offi cers woke Plummer to speak to h im, his behavior was erratic and disoriented. See Defs.’ Ex. 6 (Lukanovic Dep.) at 63:15-64:4; Defs.’ Ex. 7 (Nel son Dep.) at 15:10-16:3; Defs.’ Ex. 8 (Arringt on Dep.) at 119:2-120:12; Defs .’ Ex. 10 (Welsh Dep.) at 18:4- 17. He was also unaware of having s truck Taylor’s garage, eventhough he had done so just a short time earlier. See Defs.’ Ex. 9 (Plummer 9 11 Call) at 3:07-12, 7:10-40. Because Defendants have made a showing that probable cause exis ted for the arrest, Plummer must come forth with spe cific facts to show that there is a genuine issue as to the existence of probable cause. See Montgomery v. Risen , 875 F.3d 709, 713 (D.C. Cir. 2017). To the extent that Plummer disput es Defendants’ account, he is req uired, under the Local Rules of this Court, to respond to Defendants’ statement of material fac ts by identifying both the facts in dispute and the specific record eviden ce supporting his version of events. See Local Civil Rule 7(h); Estate of Parsons v. Palestinian Auth. , 651 F.3d 118, 136-37 (D.C. Cir. 2011) (Tatel, J., concurring) (citing Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner , 101 F.3d 145, 154 (D.C. Cir. 1996)); Lucas v. Duncan , 574 F.3d 772, 777-78 (D.C. Cir. 2009); Burke v. Gould , 286 F.3d 513, 517-18 (D.C. Cir. 2002). Plummer has failed to d o so. In addition to other deficiencies in his statement of material facts, 5 in disputing Defendants’ version of events, Plummer cites no record evidence of his own that creates a genuine issue of material fact. See Pl.’s Resp. SoMF. That is tru e, for example, of the key fact

5 Plummer’s submission frequently f ails to approach this litigat ion with the seriousness it deserves. For example, he disput es Defendants’ recitation of h is address “to the extent that the Defendants do not indicate whether the Plaintiff lives in the s tate of Washington or Washington, D.C.” Pl.’s Resp. SoMF ¶ 1. Even more distressingly, Plummer at times disputes facts that he himself has asserted. For examp le, Defendants claim that Plumm er “lost control of his car and struck Mr. Taylor’s garage.” Defs.’ SoMF ¶ 8. Plummer dispute s this statement “to the extent that Plaintiff did not state that he lost control of his car.” Pl.’s Resp. SoMF ¶ 8. But Plummer’s Verified Amended Complaint—whic h he signed under oath—states ju st that: he “lost control of the speed of the vehicle and struck his neighbor’s garage.” Am . Compl. ¶ 15.13 that he was found slumped ove r the wheel of the car. See id. ¶¶ 48, 56. Plummer purports to dispute this fact—but he does s o without citing any evidence to the contrary, even his own testimony. See id. (In fact, he has included only asingle page of his own depos ition transcript among his opposition papers. See Pl.’s Ex. 4.) This is plainly ins ufficient to create a genuin e issue of material fact. Plummer also makes legal argum ents that are unavailing. He arg ues that Defendants lacked probable cause to arrest hi m for leaving the scene of a collision without showing identification, in violatio n of D.C. Code § 50-2201.05c. See Pl.’s Opp’n at 12-13. That—not operating while impaired—was the c rime for which he was actuall y arrested. See Defs.’ Ex. 7 (Nelson Dep.) at 42:11-20; De fs.’ Ex. 11 (arrest report). And he was eventually charged with leaving while colliding, as well as operating a motor vehicle w ith a suspended license. Am. Compl. ¶ 31. But all of that is of no moment. It is well esta blished that an arrest is constitutionally valid if there is probable cause for any charg e, even one different from the charge actually made. See Bookhardt , 277 F.3d at 564-67. Because there was probable cause to support charging Plummer with ope rating while impaired, the Court need not decide whether probable cause also supported th e charge of leaving after colli ding. Plaintiff further argues that , because his garage is private pr operty, the police were obligated to obtain a warrant be fore entering and then arrestin g him there. See Pl.’s Opp’n at 13. It is, of course, true that offi cers require a warrant in order to enter a home to effect an arrest, absent exigent circumstances. See, e.g. , In re Sealed Case 96-3167 , 153 F.3d 759, 764 (D.C. Cir. 1998) (citing Payton v. New York , 445 U.S. 573 (1980)). And the Supreme Court recently reaffirmed that a warrant is re quired to search the “curtilage” surrounding the home—including14 places where cars are typically parked. See Collins v. Virginia , 138 S. Ct. 1663 (2018). 6 Nonetheless, assuming that this pr inciple applies equally to Pl ummer’s open garage, police did not need a warrant to enter it, because exigent circumstances j ustified the officers’ presence there. “Exigency can justify a w arrantless search ‘when there is compelling need for official action and no time to secure a warrant.’” Corrigan v. District of Columbia , 841 F.3d 1022, 1030 (D.C. Cir. 2016) (quoting Michigan v. Tyler , 436 U.S. 499, 509 (1978)). Such circumstances include “hot pursuit of a fleeing s uspect” and the “‘need to pr otect or preserve life or avoid serious injury.’” Id. (quoting Brigham City v. Stuart , 547 U.S. 398, 403 (2006)). The officers bear the “heavy burden” of jus tifying the intrusion by showing “reasonableness based on particular circumstances.” Id. They must have probable cause to believe that the exigency exists, and the intrusion must be no greater than necessary. Id. The facts of this case, invol ving an impaired driver behind the wheel of his car, leave no doubt that the officers had probabl e cause to believe that step ping from the alley into Plummer’s open garage was needed “to protect or preserve life or avoid se rious injury.” Id. (quoting Brigham City , 547 U.S. at 403). The Supreme Court has recognized the government’s powerful interest in “neutra lizing the threat po sed by a drunk driver wh o has already gotten behind the wheel.” Birchfield v. North Dakota , 136 S. Ct. 2160, 2179 (2016). As discussed above, police had clear grounds to believe that P lummer was impaired in some way. That alone meant it was

6 Defendants seek to justify the w arrantless arrest based solelyon a District of C olumbia statute. See Defs.’ Br. at 19. But it is funda mental, of course, that the “‘Constitution’s protections concerning search and seizure’ do not vary with state arrest law.” Amobi v. D.C. Dep’t of Corr. , 755 F.3d 980, 989 (D.C. Cir. 2014) (quoting Virginia v. Moore , 553 U.S. 164, 173 (2008)). Thus, if an arrest runs afoul of the F ourth Amendment, local law to the contrary cannot render the arrest constitutional. See Payton , 445 U.S. at 576. The Court notes t hat this is only one of several deficiencies in Defendants’ motion papers, which includ e other substantive and technical errors. While the facts in the record support summary judgmentfor Defendants, these deficiencies have increased the burden on the Court in deciding the motion.15 reasonable for them to conclude that leaving Plummer at the whe el would endanger the public, and additional facts heightene d that risk. According to his ne ighbor’s 911 call, Plummer had already struck Taylor’s garage , fallen unconscious, and then st arted driving again. See Defs.’ Ex. 5 (Landrum 911 call). Police observed, consistent with the earlier 911 call, signs that Plummer’s car had indeed collide d with his neighbor’s garage. See Defs.’ Ex. 7 (Nelson Dep.) at 20:1-16. These circumstances rai sed the obvious danger—noted b y the officers who were there—that Plummer might, upon reg aining consciousness, return to the streets and cause more damage, this time to people instead of property. See Defs.’ Ex. 8 (Arringt on Dep.) at 62:19-63:3; Defs.’ Ex. 10 (Welsh Dep.) at 21 :2-11. Indeed, courts across the country have recognized that a drunk person sitting behind the wh eel of a car poses precisel y this threat to the community, even when the person has slipped into unconsciousness. See Bell , 132 A.3d at 857 & n.3 (collecting cases). The need to a ddress this danger plainly ju stified the officers’ actions in stepping into Plummer’s open garage . Moreover, subsequent even ts served to confirm the officers’ concerns, since—even i f the engine was not running wh en the officers first arrived— later in the encounter, Plummer revved it up in the officers’ p resence, see Defs.’ Ex. 8 (Arrington Dep.) at 119:21-120:9. Police also had probable cause to b elieve that Plummer himself was in danger. The need “to render emergency assistance to an injured occupant or to pr otect an occupant from imminent injury” justifies warrantless entry into the home. Kentucky v. King , 563 U.S. 452, 460 (2011) (quoting Brigham City , 547 U.S. at 403). Here, the firstresponders were paramedics and fire officials who attempted (withoutsuccess) to offer medical assi stance to Plummer. Defs.’ Ex. 2 ¶ 18; Defs.’ Ex. 7 (Nelson Dep.) at 13:18-14:8. When police of ficers arrived they were told as much, and personally observed Plummer slumped over the wheel of his car. See, e.g. , Defs.’ Ex.16 7 (Nelson Dep.) at 14:4-8, 16: 17-17:4. Neighbors reported that Plummer had also become unconscious earlier, after cr ashing into Taylor’s garage. See Defs.’ Ex. 5 (Landrum 911 call) at 1:45-2:20. While one possible infe rence—the most likely one, g iven the context—was that Plummer was merely drunk, it was also reasonable for the office rs to be concerned that he was having a medical emergency. Inde ed, the uncontroverted evidenc e shows that officers on the scene reasonably feared that Pl ummer might be in diabetic shock and sought to measure his blood-sugar level. See Defs.’ Ex. 7 (Nelson Dep.) at 69 :4-21; Defs.’ Ex. 10 (Welsh De p.) at 19:6-20, 27:4-5. The entry into Plu mmer’s garage was therefore also justified to ensure that he received prompt medical eva luation and possible treatment. In short, given the facts the officers encountered, which invol ved immediate threats to the safety of both Plummer and the pub lic, it was reasonable under the Fourth Amendment for the officers to step into his open ga rage to respond to the exigenc y. Thus, their entry was lawful, and they needed only probable cause to believe that Plummer had committed a crime in their presence—which they had—to justi fy the warrantless arrest. See United States v. Winchenbach , 197 F.3d 548, 553-54 (1st Cir. 1999); Sheik-Abdi v. McClellan , 37 F.3d 1240, 1245 (7th Cir. 1994). Therefore, the Court conclu des that the arrest was lawf ul, and will enter judgment for Defendants on Count III.
C. Count I: False Arrest, False Imprisonment, and Intentional Infliction of Emo tional Distress (“IIED”) Count I asserts claims of false a rrest, false imprisonment, and IIED against MPD, Lukanovic, Kutniewski, and Nels on under District of Columbia law. Like Plummer’s federal claims, these claims rest entir ely on his allegation that his arrest was unlawful. See Am. Compl. ¶¶ 35-43. As explained above, the claims against MPD have been dismissed, and so the Court will analyze whether the individual defendants are entitled to summary judgment.17 All three causes of action rise and fall together. “‘False arr est’ is indistinguishable as a practical matter from the comm on law tort of ‘false imprisonmen t.’” Enders v. District of
Columbia , 4 A.3d 457, 461 (D.C. 2010). In evaluating either claim, the key issue is whether the arrest was lawful. See id. Under District of Columbia law , as under federal law, the gov ernment has the burden to prove that a warrantless arrest was valid. Id. at 462. And, again as under federal law, an officer may make a warrantless ar rest for any o ffense committed in her presence.
See id. at 462-63; D.C. Code § 23-581(a)(1 )(B). Moreover, where an ar rest is legally justified, the arrest alone cannot serve as the basis for a claim of IIED. See Smith v. United States , 843 F.3d 509, 513 (D.C. Cir. 2016) (citing Kotsch v. District of Columbia , 924 A.2d 1040, 1046 (D.C. 2007)). Nor can a claim f or IIED rest on officers’ “use of reasonable force in effectuating
an arrest.” Campbell v. District of Columbia , 245 F. Supp. 3d 78, 90 (D.D.C. 2017); see Magwood v. Giddings , 672 A.2d 1083, 1088-89 (D.C. 1996). These claims fail for largely the same reasons as Plummer’s Fourth Amendment claim. The police had probable cause to bel ieve that Plummer was opera ting a vehicle while impaired in their presence, and thus had vali d grounds to make a warrantles s arrest under District of Columbia law. The Court notes one relevant di fference between District of Col umbia and federal law, although it does not change the outcome. As explained above, under federal law an arrest is valid so long as there was probable cause to believe the defend ant committed any offense, not necessarily the one actually charg ed. District of Columbia lawalso recognizes this principle, but requires an additional showing that “the consequences for the p laintiff probably would have been substantially as unfavorable i f he had been arrested on the charge on which the defense seeks to rely after the fact.” Karriem v. District of Columbia , 717 A.2d 317, 323 (D.C. 1998) (quoting18 Etheredge v. District of Columbia , 635 A.2d 908, 920-21 (D.C. 1993)). That is, the fact that th e accused could have been arrested for a minor offense (such as a misdemeanor weapons charge)

cannot serve as a post hoc justification if the accused was actually charged with a more serious offense (such as a felony larceny charge). See Etheredge , 635 A.2d at 920. This added requirement does not change the result in Plummer’s case. The crime Plummer was charged with—leavi ng while colliding where the onlydamage is to property— carries a maximum sentence of 30 days if the defendant is a fir st-time offender, or 90 days if the person is a repeat offender. See D.C. Code § 50-2201.05c(d)(2)(A) -(B). Operating while impaired leads to more severe pe nalties: a first offense carrie s a maximum sentence of 90 days, and subsequent violations carry jail terms of up to a year. See D.C. Code § 50-2206.15(a)-(c). Because the crime actually charged was less serious than operating while impaired—which, as discussed above, the officers cl early had probable cause to bel ieve Plummer was committing in their presence—probable cause for operating while impaired adeq uately justifies the arrest. Plummer argues in support of hi s IIED claim that officers “atta cked his person,” “abused” and frightened him, and unlawfully “damaged his proper ty.” Pl.’s Opp’n at 16. As an initial matter, Plummer’s compl aint appears to plead this claim based only on the fact of the arrest itself. See Am. Compl. ¶ 41. Because the arrestwas lawful, the claim fai ls. Smith , 843 F.3d at 515-16 (citing Kotsch , 924 A.2d at 1046). In any event, to the extent Plummer now asserts that police engaged i n outrageous conduct over and abov e the arrest, he has not created a genuine issue of material fact. T he evidence in the record sho ws only that police instructed Plummer to exit his vehicle, that they broke his car window aft er he repeatedly refused, that (viewing the record most favorab ly to him) they removed him fro m the vehicle, and that they19 may have damaged his garage door when they prevented it from cl osing on them. 7 This proportionate use of force incide nt to Plummer’s arrest cannot support an IIED claim. Compare Hargraves v. District of Columbia , 134 F. Supp. 3d 68, 94 (D.D.C. 2015) (collecting cases in which IIED claims failed where officers merely drew weapons or used a chokehold to break up a fight), with Xingru Lin v. District of Columbia , 268 F. Supp. 3d 91, 103-04 (D.D.C. 2017) (collecting cases in which mor e egregious conduct, such as slamming the plaintiff on the hood of a car or killing his dog, sufficed t o make out an IIED claim). Indeed, to support an IIED claim, “defendant’s actions must proxima tely cause the plaintiff emoti onal distress ‘of so acute a nature that harmful physical consequen ces might be not unlikely to res ult.’” Kotsch , 924 A.2d at 1046 (quoting Clark v. Associated Reta il Credit Men of Wash., D.C. , 105 F.2d 62, 65 (D.C. Cir. 1939)). Accordingly, where the pl aintiff “did not seek medical assistance for physical or psychological injury,” the Distr ict of Columbia Court of Appeal s has required expert testimony to support a claim that the conduc t “caused severe emotional di stress.” Id. Plummer has introduced no such evidence, pr oviding yet another reason why this claim fails. Therefore, the Court will enter judgment for Defendants on Coun t I.
D. Count V: Negligence, Munici pal Liability, and Agency Count V, while captioned as “negli gence,” in fact attempts to h old the District liable for the individual officers’ conduct under three different theories : negligent supervision, see Am. Compl. ¶¶ 56-57, agency, see id. ¶¶ 60-62, and municipa l liability under § 1983, see id. ¶¶ 58-59. Defendants argue, among other things, that Plummer has failed t o establish evidence sufficient to support these claims. See Defs.’ Br. at 31-32.

7 Plummer’s opposition brief cites a portion of his deposition t estimony that, in his view, supports a claim that officers us ed more force than their own t estimony describes. See Pl.’s Opp’n at 16. But neither party ha s introduced that portion of his testimony into the record, and thus the Court cannot consider it. See Fed. R. Civ. P. 56(c)(1).20 All of these theories fail becau se each seeks to hold the Distr ict liable for the allegedly wrongful arrest of Plummer. See Am. Compl. ¶¶ 55-62. As expl ained above, the arrest was lawful. For that reason alone, the Court must enter judgment f or Defendants on this count. The Court also notes that, to the ex tent that Plummer asserts munic ipal liability under § 1983, he must show that a “policy or cus tom” of the District caused his purported constitutional injury. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978); Blue v. District of Columbia , 811 F.3d 14, 18-19 (D.C. Cir. 2015). Plumme r has failed to introdu ce sufficient evidence of such a policy or custom. Therefore, the Court will grant summary judg ment for Defendants on
Count V.
E. Count VII: Negligence Finally, in Count VII, Plummer alle ges that the District was ne gligent in failing to maintain the alley behind his hous e, leading to the pothole tha t he encountered on the morning of July 5, 2014. See Am. Compl. ¶¶ 66-68. “Before the District may be liable for f ailure to maintain a roadway, it must have notice (actual or constructive ) of an unsafe or dangerous condition.” Tucci v. District of Columbia , 956 A.2d 684, 699 (D.C. 2008). “‘The existence of prior notice,’ is notenough, however; a plaintiff must demonstrate that the street is ‘in fact unreasonably dangerous.’” Id. (quoting District of Columbia v. Freeman , 477 A.2d 713, 718-19 (D.C. 1984)). “The plaintiff has the burden of establishing th at a violation of the reasonable standard of care is the proxima te cause of the injury sustained .” Id. ( quoting District of Columbia v. Cooper , 445 A.2d 652, 655 (D.C. 1982) (en banc)). In cases involving relatively minor defects, expert testimony i s required to establish the re levant standard of care. See id. at 699-700. Here, Defendants have introduce d undisputed evidence that the D istrict had no notice that the alley behind Plummer’s house was in poor condition. See Pl.’s Resp. SoMF ¶¶ 110-113.21 Indeed, Plummer himself testifie d that he had not observed a po thole in the alley before the morning of July 5, 2014. Id. ¶ 16. Plummer also has not introduced any expert testimony as would be required to make out this claim. Indeed, he has not a ddressed the merits of Count VII in his opposition brief at all. 8 Therefore, the Court will grant summary judgment for Defendan ts on Count VII.
Conclusion For all of the above reasons, Def endants’ Motion for Summary Ju dgment (ECF No. 14) will be granted, and judgment entered for Defendants, in a separate order. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: June 20, 2018

8 Plummer did address Defendants’ argument that Count VII should be dismissed because he failed to comply with the notice requirement set forth in D.C. Code § 12-309. See Pl.s’ Opp’n at 4-12. The Court finds it unnecessary to resolve that issue, be cause it is plain that the Court must grant summary judgment for Defendants on the merits. The Court notes the majority view among judges in this District that compliance with § 12-309 is not a jurisdictional requirement, see Maldonado v. District of Columbia , 924 F. Supp. 2d 323, 332 (D.D.C. 2013), which means that the Court is not required to address it before turning to the merits of Plummer’s claims.