# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued Oc tober 15, 2014 Dec ided J anuar y 23, 2015

No. 13-5207

W I L B E R T H A R R I S , A P P E L L A N T

v.

U N I TE D S TA TE S D E P A R TM E N T O F V E TE R

A N S A F F A I R S , A P P E L L E E

Appea l from the United States District Court for the D istrict of Columbia (No. 1:11-c v-00114)

Donald M. T

emple arg ued the cause and filed the brief for appellant.

R. Craig Lawrence
, Assistant U.S. Attorney
, arg ued the

cause for appellee

. Wit h him on the brief wer e Ronald C. Mache n Jr.
, U.S. Attorney
, and W ynev a Johnson
, Assistant U.S. Attorney

.

Be fore : R O G E R S and W I L K I N S , Circuit Ju d

g es , and R A N D O L P H , Senior Circuit Judge

. Opinion for the Cou rt fi l ed by Senior Circuit Judge R A N D O L P H

.2

R A N D O L P H , Senior Circuit Judge : Wil bert Ha rris broug ht

an acti o n ag ainst the United States Depa rtment of Veter ans Affa irs (“V A”) seeking damag es under the Fe dera l Tort Claims Act (“F TCA”), 28 U.S.C. §§ 2671, et seq. , for false arr est and false imprisonment, assault and battery
, neg lige nce, neg lige nt infliction of emotional distress
, and intentional infliction of emotional distress. The district cour t gr anted the V A’s motion for summary judgme nt on all claims. For the rea sons that follow, we reve rse the g rant of summary judgme nt on Har ri s’ assault an d battery claim and on his claim of intentional infliction of emotional distress to the extent that it i s b ased on his assault and battery claim. We aff irm the gra

nt of sum mary judgme nt on all other cla ims.

I

.

Har ris is a Vietnam War veter an who s u ff er s from posttraumatic stress disorder (“PTSD”)

. On November 6, 2008, two day s afte r the elec tion of President Obama, Ha rris attended a g roup thera

py session for veter ans suff er i n g from PTSD at the VA Medica l Center in Washingt o n , D.C. David Sheets, a 1 clinical social worke r, ran the session. Harri s h ad wi th him a newspa per announcing President Obama’ s elec tion, and he display ed it proudly

at the beg inning of

the session.

Har ris and Sheets disag ree on what occur red n ex t , but Har ris does not dispute that Sheets asked him not to discuss political issues during the session and, when he ref used, Sheets

as k ed him to leave

. When Har ris did not, Sheets left t he room and re turned a

fewminutes later with three VA police of fice rs,

Har ri s’ am ended c om

plai nt st at es that

the i ncide nt in ques ti on 1

oc cur re d “[o ]n or abo ut Nov em ber 5, 2008 ,” al tho ugh al l ot her re co rd

ev idenc e, incl uding Har ri s’ ow n Sta te m ent of Ma te ri al Fac ts in Dis pute, s ta te s i t o cc urre d on Nov em ber 6, 2 008.3

L ieutenant Wil liam N. Nesbitt, Serg eant Denise G. Gentry
, and Corporal Donald R. Christmas. As Har ris left the room with the office rs, She ets told the office rs that Har ris had cause d a “disturbanc e.” Sheets said Har ris could not return to the g roup thera py session. Acc ording to Har ris, Har ris asked for a patient advoca te, was “neve r violent [or] combative,” and attempted to

re- enter the thera

py room to rec over his persona l items, wher eupon he was forc ed to the floor by t h e o ff icer s, handcuf fed, and place d under arr est. Har ris contends that during the arr est, one of the office rs punched him in the ribs, fra cturing one of the m.

The parties ag ree that two office rs then took Har ris to the hospital’s emer g ency depar tment, wher e he was trea ted for a

scra pe on his left hand. After he was discharg ed fr o m t he

emer g ency

depar tment, Harr is w as place d in a holding c ell and issued a citation for “[d] isorderly [c] onduct which cre ates loud, boisterous, unusual noise.” J .A. 55; see 38 C. F. R

. § 1.218(b)( 11). The cit at i o n was later dismiss ed without a hear ing. Har

ris states t hat he “endur ed mu l t i p l e hospital visits rela ted to the injuries incurre d” during the arr est, which included

a fra cture d rib and perma

nent nerve damag e in his left arm. He also claims that the attendant mental and em o tional trauma further ag g rava ted his PTSD.

Har ris’ amende d complaint ag ainst the VA alleged false

arr est and false imprisonment, assault and battery
, n eg lige nce, neg lige nt infliction of emotional distress, and intentio nal infliction of emotional distress under the FTCA. See 28 U.S.C. § 1346(b)( 1). The VA moved fo r d ismiss al, or, in the alterna tive, for summary j u d gment. See Fe d. R. Civ. P. 12(b)( 1), (b)(6), 56. Har

ris opposed the VA’s motion, arg uing that “abse nt discovery ” the VA’s m o t i on was “pre mature and should be denied.” Pursuant to the Rul es of the District Court for the District of Columbi a, Har ri s i n cl uded a “conc ise4

statement” of “all materia l fac ts” that he thought nece ssary to be litigated and “re fer ence s to the parts of the rec ord re l i ed on to support [hi s] statement.” Rule 7(h), Rules of the U.S. District Court for t h e District of Columbi a. His statement included citations to aff

idavi t s and medical documents and ref err ed to disputes over Har

ris’ behavior during the confr ontation, whether he acte d ag g ressively toward the police or forc efully tried to reen t er the thera

py room, how the police eff ecte d the arr est (s pecif ically
, whether they struck Har ris once he wa s handcuf fed)
, and whether Har

ris suffe red a fra cture d rib and other injuries beca

use of the arr est, among other disputes. Har ris did not reque st discovery pursua n t to Fe dera l Rule of Civil Procedur e 56(d)

.

The district court g rante d summary judgme nt to the VA on all claims. I t conclude d that “no rea sonable jury could find that the arr esting o ff

icer s eng ag ed in conduct amounting to false

arr est and false imprisonm ent, assault and battery
, neg lige nce, neg lige nt infliction of emotional distress, or i ntentional infliction of emotional distress.” The court deter mined that the office rs had probable cause to arr est Har ris for disorderly conduct “bec ause h e attempted to re- enter the g roup thera py

room ag ainst the office rs’ unequivo cal direc tive not to do so.” The court also held that the office rs’ use of forc e was rea sonably

nece ssary under the ci rc u mstances, ignor ing Har ris’ later profe ssions of numbness and wea kness in his left hand beca use he had been diag nosed wi th car pal tunnel sy

ndrome befor e his

arr est. The court made no mention of Har ris’ alleg ed rib injury

. Be cause Har

ris’ arr est was secur ed wi t h probable cause and

rea sonably nece ssary forc e, his claims of intentional infliction of emotional distress and neg lige nt infliction o f emotional distress also failed.5

I I

.

We revie w a district court’s decision to g rant s u m m ar y judgme nt de novo an d co n sider the evidenc e in the light most favor able to the non-m o v i ng party

. See Ayissi-Etoh v. Fannie Mae
, 712 F.3d 572, 576 (D

. C

. Cir. 2013) (per curia m). Summary judgme nt may be g rante d when “the p l eadings, depositions, answers to interr og atories, a nd admissions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled
to a judgment as a matter of l aw.” And er son v. L iberty L obby, Inc.
, 477 U.S. 242, 247 (1986) ; s ee Fe d. R. Civ. P. 56(a)
, (c)

. “A dispute over a materia l fac t is ‘g enuine’ if ‘the evidenc e is

s u ch that a rea sonable jury could return a verdic t fo r t h e nonmoving party .’” Arrington v. United States
, 473 F.3d 329, 333 (D.C. Cir. 200 6 ) (quot ing Anderson
, 477 U.S. at 248). A fac t is materia l if it “might af fec t the outcome of the suit under the g overning law.” Id. (quoting Anderson
, 477 U.S. at 248). A party opposing summary judgme nt must point the district c ourt to disputed fac ts “with the requisite specific ity and support them with appropr iate ref

ere nces to the rec ord.” Frito-Lay, In c. v. W illoughby
, 863 F.2 d 1 0 2 9
, 1034 (D.C. Cir. 1988). We may aff irm summary judgme nt o n any g round supported by the

rec ord. Jones v. Bernanke
, 557 F.3d 670, 676 (D.C. Cir. 2009).

I I I

.

Tort liability under the FTCA is deter mined acc ording to the law of the pl ac e where the alleg ed acts or omissions

occur red— i n this case , the District of Columbi a. Tarpeh-Doe v. United States
, 28 F.3d 120, 123 (D.C. C ir. 1 9 9 4). Apply ing D.C. tort law, we c onsider ea ch of H arr is’ claims in turn.

1. Fa lse Arr est and F alse I mprisonment6

The elements of the torts of fa l s e ar rest and false imprisonment ar e: (1) detention or restra int ag ainst one’s will within boundarie s fix ed by the defe ndant, and (2) t h e unlawfulne ss of such restra int. Edwards v. Okie Dokie, Inc.
, 473 F. Supp. 2d 31, 44 (D. D. C

. 2 0 07). The exis tence of probable 2

cause for arr est defe ats claims for false arr est and imprisonment. See id. ; Gabrou v May Dep’ t Store s Co.
, 462 A.2d 1102, 1104 (D.C. 1983) (pe r cur iam).

Congr ess authoriz ed the Secre tary of Veter ans Affa irs to “pre scribe reg ulations to provide for the maintenanc e of law and order and the protec ti o n o f persons and proper ty on [VA]
proper ty .” 38 U.S.C. § 901 (a) (1). Violations of such
reg ulations may be punished b y fi nes or imprisonment for not

more than six months, or both. Id

. § 901 (c)

. One such
reg ulation, codified at 38 C.F.R. § 1.218, establishes the rules of conduct “at all proper

ty under the char g e and co n t ro l of [t he] VA.” Id. § 1.218(a)

. Under § 1.218(a) (5), all perso n s on VA
proper ty are barred from (among other things) eng ag ing in conduct “which cre ates loud or unusual noise

. . . which otherwise impedes or disrupts the perf ormanc e of officia l duties

. . . [and] which preve nts one from obtaining medical or other

s er vices.” Id. A disturbance can also include the “[f]ailure t o leave the premises when so order ed,” w here upon “the of fende r is subject to arr est and remova l from the premises.” Id. ; see also

“I n the Dis tr ic t o f Co lum bia, t he to rt s o f fa ls e a

rr es t a nd fal se 2 im pris onm ent ar e indis ti nguis hable .” Joy ce v. Unite d State s , 795 F. Supp

. 1, 4 (D.D.C. 1992 ), aff ’d
, 9 8 6 F.2d 546 (D.C. Cir

. 1993 ) (unpublishe d) (c it ing Shaw v. May Dep’ t Store s Co.
, 2 6 8 A .2d 607 (D.C. App. 19 70)).7

id. § 1.218(b)( 11) (spec ify ing schedule of offe nses for disorderly conduct punishable pursuant to par ag raph ( a))

. 3

This reg ulation has been read t o include causing a commotion that drew VA employ ees awa y from their ordinary duties, United S t ates v. Agront
, No. 13-10218, 2014 WL 6600419, at *6 (9th Cir. Nov. 21, 2014), and that “tende d to ‘impede or

preve nt the normal oper ation of a service ’” at a VA fac il i t y

. United States v. Encinger
, 4:10CR3027, 2010 WL 277188 4
, at *4 (D. Neb. J ul. 13, 2010) (quoting 38 C.F.R. § 1.218(11)) ; see also United States v. S h ep a r d
, 362 F. App’x 107, 112 (11th Cir. 2010) (unpublished).

Har ris emphasizes that there is a fac tual dispute ov er wh o order ed Har

ris not to re en t er the g roup thera py room—he say s it was Sheets while the district court stated it was the police. Appellant Br

. at 10. But the dispute i s o f no moment. Undisputed evidenc e suffice s to establish probable cause

. I n his amende d complaint, Har

ris conce des that Sheets expelled him from g roup thera

py and t o l d the police that Har ris cause d a “disturbance” and “could not return to [t he] g roup or continue
trea tment.” Harris states that he acte d calmly
, that he “did not ref use to leave t h e [ group thera py ] room,” and that he “neve r attempted to forc efully ree nter the [group thera py ] room and

never disobey ed a police office r’s statem en t

. ” But Har ris acknow ledg es that even afte r S h ee t s asked him to leave g roup

Har ri s w as ci te d only fo r a vi ol at io n of the por ti on of the 3

re gul at io n that li st s the sch edu le of of fe nse s. 38 C.F.R. § 1.21 8(b)( 11). We not e, as hav e ot her co urts , that a vio la ti on of § 1.21 8(b)( 11) is ta

ntam ount t o a

vi ol at io n of the of

fe nse s prohibit ed by § 1.21 8(a )( 5). See Unite d Stat es v. Dye rs , No . 1: 06- MJ- 455-AJB, 2007 WL 3971 09, at * 1- 2 (N.D. Ga. Jan. 30, 2007 ); Unite d State s v. Fentr es s , 241 F. Supp

. 2d 526, 529 (D. Md. 2003 ), aff’ d
, 69 F. App’ x 643 (4th Cir . 200 3).8

thera py , he rema ined in the room and only left when Sheets
returne d with three VA police office rs, and
, o n ce outside the room, he a ttempted to ree nter, whe ther “ forc efully ” or not.

T ak en toge ther, these undisputed fac ts wer e sufficie nt to justify arr est. Sheets had order ed Har ris to leave g roup thera

py , an d the police observe d Har ris’ failure to comply when they entered the room. “F ailure to leave the premises when so order ed constitute[d] a [ ] disturbance ” that subjected Har ris “to

arr est and remova l from the premises” under VA reg u l at i o ns. 38 C.F.R. § 1.218(a) (5). Sheets also in t er ru p ted the thera py session he was running to addre ss Har ris’ alleg ed “disturbanc e.” Conduct that “tend[s] to disturb the r outine opera tions of a VA hospital . . . is pr ohibited” under § 1.218(b)( 11). Fentress
, 241 F. Supp. 2d at 530 (quoting United States v. W illiams
, 892 F.2d 1044, at *2 (6th Cir. 1990) (per curia m) (unpublished)); see also Agront , 2014 WL 6600419, at *7.

Although Har

ris was char g ed only with “[d] isorderly [c] onduct which creates loud, boisterous, unusual noise,” J .A. 55, under 38 C

. F.R. § 1.218(b)( 11), probable cause may exis t “to arr est for any offe nse, even if it differ s from the offe nse for which the arr est was actua lly made.” Enders v. Dist r i ct of Columbia
, 4 A.3d 457, 469 (D.C. 2010). The undisputed evidenc e in this case re veale d the probability of sever al

o ff en ses: failing to leave the premises afte r being so order ed, distracting a VA employ ee (Sheets), and i n h ibiting medical
trea tment (g roup thera

py ). See U nited States v. Prandy-Binett
, 995 F.2d 1069, 1073- 74 (D.C. Cir. 1993).

The evidenc e may have been insufficient to convict Har ris, but the only question befor e u s is whether the police had probable cause to arr est him, which the undisputed fac ts show that they did. Acc ording ly
, we aff irm t he g rant of summary judgme nt as to this claim.9

2. Assault and B attery

An assault is an intentional attempt or threa t to do phy sical harm to another

. A battery is an intentional act that cause s harmful or offe nsive bodily contac t. See Evans-Re id v. District of Columbia , 930 A.2d 930, 937 (D.C. 2007). The police have

a qualified privileg e to commit b o t h torts when using “re as onable forc e to eff

ect an arr est, provided that the means employ ed are not in excess of those which the actor rea sonably believes to be nec essar

y .” Arrington , 473 F.3d at 335 (quoting E t h eredge v. District of Columbia
, 635 A.2d 908, 916 (D. C

. 1993)). “ The ‘rea sonablene ss’ of a particula r use of forc e must be judge d from the perspe ct i ve of a rea sonable office r on the

scene , rathe r than with the 20/20 vision of hindsight.” Graham

v. Connor
, 490 U.S. 386, 396 (1989); see also Plumhoff v. Rick a r d
, 134 S. Ct. 2012, 2020 (2014). Acc ording ly
, “a defe ndant’s motion for summary judgme nt is to be denied only when

. . . a rea sonable jury could conclude that the excessiveness of the forc e is so appar ent that no rea sonable office r could have b elieved in the lawfulne ss of his actions.” W ardlaw v. Picke tt , 1 F.3d 1297, 1303 ( D.C. Cir. 1993).

The district court conclude d that “ther e is no basis for a trier of fac t to co nclude that the office rs used excessive forc e in executing the lawful arr est of [Harris ]

. ” But this conclusion

o verlooks g enuine issues of materia l fac t about what occur re d during Har

ris’ arr est, issues broug ht to the district court’s attention with rea sonable specific ity in Har ri s’ Statement of Materia l F acts in Dispute. See Frito-Lay
, 863 F.2d at 1033-34.

Sheets stated that duri n g Har ris’ confr ontation with the office rs outsid e of the thera py room, Har

ris beca me “ver bally and emotionally out of contr o l
, resisting compliance .” Har ris then “appe are d to att ack one office r and was then taken to the
g round and handcuf

fed by the police. He did not appea r to be10
injured but he did appea r to be a dang er to others.” T he Uniform Offe nse Report filed the day of the incident and signe d by one of the responding office rs, Donald Christmas, de scribes how Har ris “re fuse[ d ] t o comply ” with the office rs and “we nt towards L T. NESBI T [si c] and [si c] an ag g ressive w ay and g ot combatant [ sic ] with police officer s,” whereupon “he was then taken to the g round and put into restraints.” How ever , the Use of Fo rc e R eport Event Record that Nesbitt filed the day of the i n ci dent makes no mention of Har ris coming toward him. I t repor ted only that Har

ris “fa iled to comply with th e p o l i ce

o ff icer s[’] direc tives

. . . beca me distributive [si c] and tried t o enter a group session room forc efully ,” wher eupon he “wa s taken down to the floor[,] [h] andcuf fed[,] and escor

ted to the ER for tre atment for dif

ficulty brea thing.”

I n a decla ration Nesbitt executed in May 2012, he states that Har ris “fa iled to comply with police direc tives and attempted to enter a room forc efully

. I then assis t ed wi t h a take- down and
restra int.” Th i s decla

ration makes no mention of Har ris’ difficulty brea thing.

Ge n try ’s contempora

neous Use of For ce Event Recor d
states that Har

ris “fa iled to comply with direc tives, [ and] he tried to e nter a room forc efully ,” and that Gentry “assisted Cpl. Christmas and L t. Nesb i tt with a takedown to restra in and

escor t.” Her later decla

rati on rela tes essentially the same sequenc e of e vents.

Christmas’ han d written Use of For ce Report states that Christmas “g rab[b]ed [Harris’] left hand and put him in a[n] arm lock back down w[h] ere he then was put in restra int[ s] and

escor ted to the E.R.” Chris t m as’ decla ration repe ats the decla rations of the other o ff

icer s, stating: “Ha

rris failed to comply with police direc tives and attem p t ed to enter a room forc efully

. I then assisted with a take- down and re s t ra int and,11
along with Serg eant Gentry
, I esco rt ed Mr. Har ris to the [VA Medica l Center] Emerg ency Depa rtment.”

Har ris has a quite differ ent story

. His aff idavit states that he
acte d and spoke calmly
, “neve r attempted to forc efully ree nter the ro om and never disobey ed a police office r’s statement.” But, acc ording to Har

ris’ Statement of Materia l Fa cts in Dispute, “[r]ega rdless, the VA police office rs forc efully threw [Harris] to the g round, place d him in a lock, an d h andcuf fed him.” Corporal Christmas “punche d [hi m] in the rib afte r he was

. . . handcuf fed.” Har

ris claims his phy sical i n j u ries included “a fra cture d rib, scra

pes to his fore h ead and left hand, ong oing
neuropa thy in his left fing ers, [ ] bursitis in his left and rig ht arms,” and i ncre ased PTS D-re lated dis ability

. Har ris’ m edica l

rec ords show that he complained of pain to his chest immediately afte r being broug ht t o t h e emer g ency depar tment and that he returne d to the h o s p i t al two day s afte r the incident complaini n g o f sharp chest pain and was diag nosed with a rib fra cture

.

Whether the police office rs’ use of forc e in restr ai n ing Har ris was rea sonable turns on contested questions of fac t—including whether Har ris was “ac tively resisting arr est or attempting to evade arr est by flig ht,” Graham
, 490 U.S. at 396, whether he “pose[d] an immediate t h re at to the safe ty of the office rs or others, ” i d

. , and whether the police st ruck him afte r he was in restra ints, see Arrington
, 473 F.3d at 336-37; Tafler v. District of Columbia
, 53 9 F. Supp. 2d 385, 390-91 (D.D.C. 2008); see also DeGraff v. District of Columbia
, 120 F.3d 298, 302 (D.C. Cir. 1997).

“[A] plaintiff may defe at a summary judgme nt g rante d to a defe ndant if the parties’ swo rn statements are materia lly12

differ ent.” Arrington
, 473 F.3d at 337. Her e, t h e aff idavits, 4 decla rations, pleading s, and other evidenc e show that there are fac tual disputes th at could aff ect the outcome of the suit. See A n d er s o n , 477 U.S. at 247-49. First, it is disputed what happened immediately befor e Har ris was taken to the g round and handc u ff

ed

. Sheets and the Uniform Offe nse Report state that Har ris “attac k[ed] ” one of the office rs, but Nesbitt, Gentry
, and Christmas state only that Har ris attempted to enter the room “for cef ully .” Ha rris claims that he calmly turned to re enter

the

room to collect his belong ings. Second, it is disp u ted whether Har ris was struck in the chest during the arr est, as he claims and

as Ne s b itt’s contempora neous Use of For ce Report Event Record (which said Har

ris had trouble brea thing) could sug g est. Third, it is disputed whether Har ris’ rib was fra cture d as a result of the arr est , as he claims and as the doctor’s repor ts could
sug g est. Four

th, it is disputed whether Har ris suffe red
perma nent nerve damag e as a result of t h e ar rest, as he claims, but as some med i cal documentation disputes. Fifth, it is disputed whether Har

ris’ arr est contributed to an incre ase in his PTSD disability rating
, as he claims, or if it mere ly corr elated with it, as a decla

ration from a VA Service C en t er M anage r states.

Th e V A ar gu es th at w e sho uld not re ly on Arr ington fo r the 4
pro pos it io n that a plai ntif f’s sw or n stat eme nt, co ntra dict ing the def endant ’s ve rs io n o f the fa ct s, is suff ic ie nt to cr ea

te a ge nuine is sue in dispute, bec aus e “un li ke Arr ing to n, Har ri s’ af fi dav it appea

rs to

co ntra dict his ow

n co m plai nts an d the authr ot ia ti ve [s ic ] m edic al

ev idenc e.” Appelle e Br . at 17 n.2.

The VA has m is re ad the se al ed me dica l rec or ds. The VA w ri te s in it s brief that Har

ri s did not co m

plai n of ri b pain res ulti ng fro m the inci dent “un ti l ov er a y ea r la te r.” Id. at 17. That st at em ent is not

ac cur at e. Har

ri s’ st at em ents and the m edic al ev idenc e ar e not

co ntra dict or

y

.13
Weighing cre dibilit y , resolving fac tual disputes, and draw ing leg itimate infere nces are matters for the fac t-finder ; thus, summary judgme nt is inappropria te. See PardoKronemann v. Donovan
, 601 F.3d 599, 604 (D.C. Cir. 2010). Ac cording ly
, we reve rse the g rant of summary judgme nt on Har ris’ assa ult and battery

claim.

3. Neg lige nce

Har ris’ third claim is for neg lige nce. He claims that Sheets had a duty to trea t him “in a manner th at was sensitive to his victimiz ation” and that “Sheets beca me mean spirited and vindictive,” cause d the confr ontation with police, and,
conseque ntly
, cause d “unnec essar y harm to Har

ris.” The district
court held that no rea sonable jury could find that the ar resting offi ce rs acte d neg lige ntly

. Be cause Har ris advanc ed no arg ument in his brief befor e us about why the district court

err ed, w e d o n o t consider this claim. See U.S. ex rel. Totten v. Bombardier Corp

. , 380 F.3d 488, 497 (D.C. Cir. 2004). We there fore aff

irm the district c ourt’s g rant of summary judgme nt on Har ris’ neg lige nce c laim.

4. Neg lige nt I nfliction of Emotional Distress

To make out a claim for neg lige nt infliction of emotional d i s tress, a plaintiff must show that “(1) the plaintiff was in t h e

z o n e of phy sical dang er, which was (2) cre ated by th e defe ndant’s neg lige n ce , (3) the plaintiff fea red for his own safe ty , and (4) the emotional distress so cause d was serious and verifia ble.” Rice v. District of Columbia
, 774 F. Supp. 2d 25, 33 (D.D.C. 2011).

Har ris arg ues that “Sheets was en t ru sted with the car e of Veter ans who we re sig nificantly mentally and emotionally

ill,” and that “he knew there was no b asis to arr est Har ris” but14

“ca lled secur ity

. . . an d rec klessly cause d them to become involved in the unnece ssary arr est and detention there by brea ching his duty to Har ris.” Har ris conclude s: “A s a direc t and prox imate result of the intentional and wrong ful ac tions of [S heets], [Harris] suffe red phy sical harm, emotional distress and mental ang uish.”

The d i s t rict court did not direc tly addre ss the neg lige nt i n fl iction of emotional distress claim; instead, the court considere d it with the claim of intentional infliction of emotional distress, concluding that both claims failed becau s e t he VA police arrested Har

ris with probable cause and rea sonably

nece ssary forc e.

We aff irm the g rant of summary judgme nt on the neg lige nt infliction of emotional distress claim without rea ching its merits beca use Har ris did not proper ly plead the claim in his amende d complaint. Har

ris descr ibes S h eets’ actions as knowing and “intentional,” and “[i] n tent and neg lige nce are reg arde d as mutu ally exclusive g rounds for liability .” District of Columbia

v. Chinn
, 839 A.2d 701, 706 (D.C. 2003) (interna l quotation marks and citation omitted); see also D A N B. D O B B S E T A L ., T H E L A W O F T O R

TS § 31 (2d ed. 2 011) (“A ny g iven act may be intentiona l o r it may be neg lige nt, but it cannot be both.”). Merely using the term neg lige nce does “not raise a cog nizable claim of neg lige nce.” Chinn
, 839 A.2d at 708. Her e, as in Rice
, Har ris “fa il[ ed] to distinguish the bases for [hi s] claims.” Rice
, 774 F. Supp. 2d at 33. Be cause the amende d complaint “do es not distinguish betwee n neg lige nt and intentional acts, does not identify any specific ac t that was alleg edly neg lige nt, and fails
to make out a claim of n egli g ent infliction of emotional distress,” id. at 33-34, we af fi rm the district court’s g rant of
summary judgme nt on this claim.

5. I ntentional I nfliction of Emotional Distress15

To make out a claim for intentional infliction of emotional distress, Har

ris “must show that the [VA] acte d in an (1 ) extreme and outra g eous m anner (2) which was int entionally or

rec klessly calc ulated to cause [Harris] (3) sever e emotional distress.” Joyc e , 795 F. Supp. a t 5 (citing Gree n v. Am. Broad. Co.
, 6 4 7 F. Supp. 1359, 1362 (D.D.C. 1986)). Gene rally
, “[l] iability h as b een found onl y wher e the conduct has been so outrag eous in char acte r, and so extreme in deg ree , as to go bey ond all possible bounds of dece ncy , and to be reg ar d ed as atroc ious, and utterly intolerable in a civiliz ed comm unity .” Abourezk v. N.Y

. Airlines, I

nc. , 895 F.2d 1456, 1459 (D.C. Cir. 1990) (quoting Sere v. Grp. Hospitalizat ion, I nc. , 443 A.2d 33, 37 (D.C. 1982)) (alter ation in orig inal); see also R E S TA TE M E N T (S E C O N D ) O F T O R

TS § 46 cmt. d (1965).

I n his amende d complaint, Har ris alleg ed that Sheets “ac ted in a manner t h at h e hoped would cause intentional harm to [Harris], including phy sical harm.” S h eets alleg edly “knew or sho u l d have known that his calling of secur ity and excluding [Harris] from the class would result i n further emotional and mental harm to [Harris],” and, as a result of Sheets’ “intentional and wrong ful actions [Harris] suffe red phy sical harm, emotional distress and mental ang uish.” I n his oppos i t i o n to the VA’s motion for summary judgme nt, Har ris st at ed that he based his intentional infliction of emotional distress claim on both the VA office rs’ alleg ed use of excessive forc e an d the alleg edly unjustified arr est. He distinguished his case from Ga b r o u v. May D epartment Stores , 462 A.2d at 1102, on which the VA’s motion for summary judgme nt relied, by noting that the plaintiff in Gabrou failed to p l ea d assault and battery in his complaint, wher eas “Ha

rris’s claim of excessive forc e is a t the hear t of his Amended Complaint and is sufficie n t ly pled with fac ts that support his claim.” He arg ues that the fac t that he was “ar rested, beate n, and brutalized could result in a jury concluding that the office rs’ b eh av ior was ‘outrag eous,’” and, thus, his claim for16

intentional inflict i o n of emotional distress should survive
summary judgme nt.

As an initial matter
, while Har ris descr ibes Sheets’ actions in his amende d complaint, the VA is the defe ndant and its ag ents (the police office rs) alleg edly committed the assault and battery

. As the VA conce des in its paper s befor e the district court and as the district court re cognized in its decision, the issue here is whether the office rs’ actions constituted intentional infliction of emotional distress. The VA, throug h the doctrine of respondeat superior , would be liable for tor ts committ ed by

the VA police office rs acting in their scope of empl o y m en t

. See Holder v. District of Columbia
, 700 A.2d 738, 741-42 (D .C. 1997). Acc ording ly
, like the district court, we construe Har ris’ claim as ag ainst the defe ndant, the VA, a nd not Sheets.

As discu s s ed
, we hold that the VA had probable cause to

arr est Har

ris. To the extent that Har ris’ claim of intentional infliction of emoti onal di stress arises from the mere fac t o f h i s

arr est, we ag ree with the district court that the probable cause for

arr est defe ats those claims. See Joyc e , 7 9 5 F. Supp. at 5. But insofar as Har

ris’ emotional distress claim rela tes to his a ssault and battery claim (and to the underly ing alleg ations of excessive forc e), w e re verse

.

The district court predic ated its ruling on the basis that Har ris’ arr est was eff

ectua ted with rea sonable forc e. But that conclusion involves disputed fac tual issues, such as whether the police struck Har

ris once he was re s t rained, fra cturing his rib and ca using othe r injuries.

Apply ing the established three -par t standard for intentional infliction of emotional distress, we note, fi rs t , that “a serious

case of excessive forc e” can constitute outrag eous behavior such that it satisfies a claim of intentional infliction of emotional17

distress. Gabrou
, 462 A.2d at 1105 (interna l quo t at i o n marks and citation omitted); see Jack son v. District of Columbia , 412 A.2d 948, 955 (D.C. 1980); see also Bende r v. City of New Y ork
, 7 8 F. 3d 787, 791 (2d Cir. 1996) (apply ing New York law) ; Robins v. Harum
, 773 F.2d 1004, 1011 (9th Cir. 1985) (apply ing Washington state law ).

Se co n d
, the requisite intent of the defe ndant can be “infe rre d, either from the very outrag eousness of the defe ndant’s
acts or

. . . when the circ umstances are such that ‘any rea sonable
person would have known that (emotional distress and phy sical h ar m) would result.’” W aldon v. Covington
, 415 A.2d 1 0 7 0
, 1077 (D.C. 1980) (citation omitted); see also Kotsch v. District of Columbia
, 924 A. 2d 1040, 1046 (D.C. 2007). Such an inquiry “is normally a fac tual question for the jury .” Ros s v. DynCorp
, 362 F. Supp. 2d 344, 360 (D.D.C. 2005) (quoting W aldon , 415 A.2d at 1078).

Third, with reg ard t o the require d showing of sever e emotional distress, “[w]hi le tort law historically require d some phy sical manifestation or sy mptom of the alleged emotional distress as a condition for rec overy , curr ent D.C. law allows ‘an action for intentional infliction [ of emotional distress to] be made out even in the absenc e of phy sical injury or impact.’” Id. at 360-61 (alter ation in orig inal) (quoting W aldon
, 415 A.2d at 1076). Har

ris sta t es that he “endure d multipl e hospi tal visits,” “suf fer ed substantial mental and emotional trauma,” and “ag g rava ted [hi s] P T SD” as a result of the incident. The VA contests the deg ree to which his PTSD worsened a nd its cause. Har ris’ alleg ed injuries, including a fra cture d rib and wor sened PTSD, might suffice to establish sever e emotional distress. See R E S TA TE M E

N T (S E C O N D ) O F T O R TS § 46 cmt. k (“N o rm all y , sever e emotional distress is acc ompanied or followed by shock, illness, or other bodily harm, which in itself aff ords evidenc e that the distress is g enuine and sever e.”) ; see als o Di s t r ict of18

Columbia v. Tulin
, 994 A.2d 788, 801 (D.C. 2010) (“a g g rava tion of a pre- exis ting depre ssion” could support emotional dist ress claim).

Given how littl e is actua lly established about the VA police’s a rre st of Har

ris and its conseque nces on his hea lth, we

reve rse the g rant of summary judgme nt on this claim. See Tulin
, 994 A.2d at 803.

I V.

We reve rse the g rant o f summary judgme nt on Har ris’ assault an d b at tery claim and on his claim of intentional infl i ct i on of emotional distress to the extent that it is based on his assault and battery claim. We aff irm the gra

nt of sum mary judgme nt on all other cla ims.

So ordered.