Kowalevicz v. United States

302 F.Supp.3d 68

Andrew Martin KOWALEVICZ, Jr., Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 1:16–cv–2494–TNM

United States District Court, District of Columbia.

Signed March 13, 2018

Jane Carol Norman, Bond & Norman Law, PC, Washington, DC, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

The Plaintiff, Andrew Kowalevicz, alleges that he was arrested and charged for driving under the influence of alcohol with no legal justification. He asserts five tort claims against the United States, which employed the officer responsible for the arrest: negligence, false arrest, malicious prosecution, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED). Compl. 5–11. The Government has moved for dismissal and for summary judgment, and both sides have provided affidavits with sharply differing accounts of what occurred. Even construing the facts in the light most favorable to the Plaintiff, I conclude that only his negligence and false arrest claims survive.

I. Background

The parties agree that just before 11 p.m. on Wednesday, November 13, 2013, Andrew Kowalevicz was in the northwest quadrant of the District of Columbia, driving around Washington Circle. Officer Coleman of the U.S. Park Police began following him as he exited the circle onto New Hampshire Avenue, and initiated a traffic stop shortly thereafter.¹ Compl. 4. In response to Officer Coleman's questions, Dr. Kowalevicz said that he had consumed one drink.² Officer Coleman then administered three field sobriety tests, and arrested Dr. Kowalevicz for driving under the influence of alcohol (DUI). Compl. 4. But when a breathalyzer test was administered at the station about an hour after the arrest, Dr. Kowalevicz's breath alcohol content twice measured 0.000. Id. After Officer Coleman submitted a report of the arrest, the District of Columbia Office of the Attorney General (OAG) brought charges against Dr. Kowalevicz for DUI and operating a vehicle while impaired—both criminal misdemeanors—although the charges were eventually dismissed before trial. See id. at 4–5. These charges resulted in the revocation of Dr. Kowalevicz's security clearance (Dr. Kowalevicz has a Ph.D. in applied physics, and works for Raytheon Company). Id. at 5; Kowalevicz Decl. ¶ 1. Dr. Kowalevicz sued the United States for negligence, false arrest, malicious prosecution, abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress.³ Compl. 5–11.

The parties dispute almost all of the remaining details surrounding the night of the arrest. Supported by an affidavit from Officer Coleman, the Government has moved for summary judgment on the false arrest and malicious prosecution claims, contending that numerous factors provided probable cause for the arrest and subsequent prosecution, including Dr. Kowalevicz's erratic driving, the smell of alcohol on his person, bloodshot eyes, and poor performance on the sobriety tests. Mem. In Support of Def.'s Mot. Dismiss and Mot. for Summ. J. (hereinafter Mot. Dismiss or Mot. Summ. J, as appropriate) at 12–15; Coleman Decl., Mot. Summ. J. Ex. 2 ¶¶ 5–23. The remaining claims, the Government argues, should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Mot. Dismiss 6–11. But Dr. Kowalevicz has provided an affidavit of his own, disputing many of Officer Coleman's factual claims with his own narrative of error-free driving, a single mixed drink two hours before the arrest, excellent performance on the sobriety tests, and zero visual or olfactory indicators of intoxication, as confirmed by the breathalyzer and the observations of a second officer at the station. Kowalevicz Decl. ¶¶ 3–33.⁴

II. Legal Standards

To prevail on a motion for summary judgment, a movant must show 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Celotex Corp v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law, and genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Once this showing has been made, the non-moving party bears the burden of setting forth "specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would ‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). In this inquiry, a court must "draw all reasonable inferences from those allegations in the plaintiff's favor," but does not "assume the truth of legal conclusions." Id.

III. Analysis

Through the Federal Tort Claims Act, the United States has waived its sovereign immunity for "certain torts committed by federal employees in the scope of their employment." Sloan v. U.S. Dep't of Hous. & Urban Dev. , 236 F.3d 756, 759 (D.C. Cir. 2001) ; 28 U.S.C. § 1346(b). "[T]he FTCA, by its terms, does not create new causes of action; rather, it makes the United States liable in accordance with applicable local tort law." Art Metal–U.S.A., Inc. v. United States , 753 F.2d 1151, 1157 (D.C. Cir. 1985). Because the arrest and prosecution of Dr. Kowalevicz occurred in the District of Columbia, I apply the District's local tort law.

A. The Motion for Summary Judgment

i. False Arrest

The Government's only argument in support of summary judgment on this count is the existence of "constitutional probable cause," which is an affirmative defense to a claim of false arrest. Scales v. District of Columbia , 973 A.2d 722, 729 (D.C. 2009). "Whether the police have probable cause for an arrest is determined by viewing the totality of the circumstances from the perspective of a prudent police officer and in light of the police officer's training and experience." United States v. Catlett , 97 F.3d 565, 573 (D.C. Cir. 1996) (citing Illinois v. Gates , 462 U.S. 213, 230–32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). "Probable cause exists where the arresting officer possesses information ‘sufficient to warrant a prudent [person] in believing that the [suspect has] committed or [is] committing an offense.’ " Catlett , 97 F.3d at 573 (quoting Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ); see also Hall v. District of Columbia , 867 F.3d 138, 154 (D.C. Cir. 2017).

Officer Coleman arrested the Plaintiff for driving under the influence, in violation of D.C. Code § 50–226.11, which states that "No person shall operate ... any vehicle in the District: (1) while the person is intoxicated; or (2) While the person is under the influence of alcohol or any drug or any combination thereof." The standard in either case is whether "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 mechanism as a modern automobile with safety to himself and the public." Muir v. District of Columbia , 129 A.3d 265, 272 (D.C. 2016) (emphasis original) (citation omitted). The Government argues that Dr. Kowalevicz was arrested because of his unsafe driving; his car smelled of alcohol; his eyes were red, bloodshot and watery; he performed poorly on roadside sobriety tests; and his admission that he'd consumed alcohol. Mot. Summ. J. 15.

While the Government's version of events would certainly support a finding of probable cause, it is the Plaintiff's version that I must credit at this stage, and he paints a very different picture. According to the Plaintiff, Officer Coleman arrested him despite a perfect driving performance and error-free completion of the sobriety tests. Kowalevicz Decl. ¶¶ 3–33. Moreover, he disputes Officer Coleman's observations about his personal appearance and notes that another officer's description of his appearance at the stationhouse supports his claims, not Officer Coleman's. Kowalevicz Decl. ¶ 16. Dr. Kowalevicz further argues that his 0.000 breath test vindicated his claim that he drank only a negligible amount of alcohol. If this account is to be credited, then Officer Coleman had nothing close to probable cause for arrest. At trial, there would be a genuine, material dispute between the parties about whether Dr. Kowalevicz's driving, demeanor and appearance, and performance on the sobriety tests created probable cause for his arrest. On the false arrest claim, I therefore conclude that the Plaintiff has carried his burden of demonstrating "specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.

ii. Malicious Prosecution

However, the Government is entitled to judgment as a matter of law on the malicious prosecution claim. "[I]n order to...