MEMORANDUM OPINION
Plаintiff Gregory Jackson, (“Officer Jackson”), an officer with the Metropolitan Police Department for the District of Columbia (“MPD”) filed a complaint against defendants District of Columbia and MPD Captain Michael Eldridge (“Captain El-dridge”) alleging false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, defamation, negligence and violations of 42 U.S.C. § 1983. Pending before this Court is defendants’ Motion for Summary Judgment. Upon consideration of the motion, the re *337 sponse and reply thereto, the applicable law, and the entire record, the Court grants defendants’ motion.
I. BACKGROUND
Although the parties may disagree on the significance of certain facts, the facts themselves are essentially undisputed. Plaintiff Gregory Jackson was an officer assigned to the MPD’s Fifth District. Defendants’ Statement of Material Facts to Which There is No Genuine Dispute (“Def.s’ Facts”) ¶ 3; Plaintiffs Statement of Material Facts in Dispute (“Pl.’s Facts”) ¶ 1. On December 23, 2004, plaintiff reported to work wearing an earring, in violation of MPD regulations. Def.s’ Facts ¶ 5; Pl.’s Facts ¶¶ 1, 2. After roll call, plaintiffs supervisor, Lieutenant Netter (“Lt. Netter”), asked plaintiff to remove his earring, but plaintiff refused. Def.s’ Facts ¶ 8; PL’s Facts ¶ 2. 1 Lt. Netter then revoked plaintiffs police powers and ordered him to turn in his police-issued uniform and equipment. Def.s’ Fad^ 9, 13; PL’s Facts ¶ 1. Plaintiff went to the locker room and Lt. Netter followed. ' Def.s’ Facts ¶ 11; PL’s Facts ¶ 4. Plaintiff turned in his uniform and equipment. Def.s’ Facts¶ 14; PL’s Facts ¶ 4.
According to plaintiff, Lt. Netter repeatedly blocked plaintiff from leaving the locker room and “placed his hand on his weapon in an aggressive posture and told the other officer that Plaintiff could [sic] and that he was not worried about the Plaintiff.” PL’s Facts ¶ 6-7. Other officers were present in the loсker room, and at some point plaintiff was instructed to go upstairs to see Captain Owens (“Cpt. Owens”). Def.s’ Facts ¶ 15; PL’s Facts ¶ 5. Plaintiff testified that while he was waiting upstairs to see the Captain, Lt. Netter “continued to act in a threatening manner toward Plaintiff, by walking by, adjusting his weapon and grunting at Plaintiff.” PL’s Facts ¶ 9.
Plaintiff spoke with Cpt. Owens, who asked plaintiff a series of questions about the incident. PL’s Facts ¶ 10. Plaintiff told Captain Owens that he felt threatened by Lt. Netter because Lt. Netter was standing in plaintiffs personal space. Def.s’ Facts ¶ 16-17; see also Def.s’ Mot., Ex. 2 at 15-16 (Cpt. Owens’s testimony). After meeting with plaintiff, Cpt. Owens dеtermined that the matter could not be resolved without revoking plaintiffs police powers. Id. Plaintiff was instructed to report to the Fifth District on December 26, 2004 to resolve the matter. PL’s Facts ¶ 13.
On the following day, December 24, 2004, however, plaintiff voluntarily reported to MPD’s Police and Fire Clinic (“Clinic”) to discuss the previous evening’s inci *338 dent. Def.s’ Facts ¶ 18; Pl.’s Facts ¶ 14. At the Clinic, plaintiff completed an “Injury or Illness Report,” known as a PD-42, and was initially seen by a physician, Dr. Matera. Def.s’ Facts ¶ 18-19; Pl.’s Facts ¶ 15. On the PD^42, plaintiff wrote:
On 12/23/03 I was attacked by Lt. R. Netter at the Fifth District. He violated my personal space and placed his hand on his gun. He then gave me personal orders and I refused. This work related incident has caused severe mental stress and places me in a hostile' working environment, that if left alone/unreported will become deadly. I feel threaten and harassed by this along with past incident involving Lt. Netter. Lt. Netter is gay and I do not and will not share his lifestyle.
Dr. Matera examined plaintiff and placed him on sick leave pending an evaluation by Behavioral Health Sciences. Def.s’ Reply, Ex. 5 at 10-11. After seeing Dr. Matera, plaintiff was seen by a doctor in the Behaviorаl Health Sciences Division, Dr. Filson. Def.s’ Facts ¶ 21; PL’s Facts ¶ 15,17.
Def.s’ Facts ¶20; Def.s’ Mot., Ex. 1 (attachment). See also, Def.s’ Reply, Ex. 5 (Dr. Matera’s testimony).
Meanwhile, Captain Michael Eldridge, the Deputy Director at the Police and Fire Clinic, was on duty at the Clinic. Def.s’ Mot. Ex. (Michael Eldridge’s Affidavit) ¶ 5. Cpt. Eldridge’s responsibility as the Deputy Director was to serve as a liaison between the doctors and the officers at the Clinic. Id. ¶ 2. According to Cpt. El-dridge’s affidavit, he had no first-hand knowledge of the events that had occurred at the Fifth District the previous day between Lt. Netter and plaintiff. Id. ¶ 3. Cpt. Eldridge reviewed plaintiffs PD^42 and plaintiffs statement on the PD-42 that, if left alone, the situation would become dеadly. 2 Id. ¶ 5.
After being seen by Dr. Filson, plaintiff proceeded to the Clinic’s checkout desk, where Cpt. Eldridge reviewed plaintiffs paperwork and told plaintiff that he was to return to the Fifth District and report to Commander Jennifer Greene to receive his duty assignment. Def.s’ Facts ¶ 22; PL’s Facts ¶¶ 18-19. Plaintiff responded that he could not return to the Fifth District because of Lt. Netter and that neither Cpt. Eldridge nor Commander Greene had the right to change his duty status. PL’s Facts ¶ 21. According to plaintiff, he also told Cpt. Eldridge that if Lt. Netter attacked plaintiff, plaintiff would defend himself. PL’s Facts ¶ 22. Cpt. Eldridge reports that during this convеrsation, plaintiff said words to the effect of “If [Lieutenant Netter] comes at me again, I’ll kill him.” Def.s’ Facts ¶ 23. While plaintiff does not admit using those words and simply says that he told Cpt. Eldridge he would defend himself, plaintiff does not deny making the statement Cpt. Eldridge reports.
Cpt. Eldridge then instructed plaintiff to return upstairs so that Dr. Filson could reevaluate plaintiff. Def.s’ Fad^ 24; PL’s Facts ¶23. Cpt. Eldridge met with Dr. *339 Filson and related plaintiffs statements regarding Lt. Netter, and then Dr. Filson spoke with plaintiff. Def.s’ Facts ¶ 24; Pl.’s FadM 23. Dr. Filson told plaintiff that plaintiffs duty status was being changed and that plaintiff could not make threats, and that because plaintiff had made threats it would have to be reported and Lt. Netter would need to be informed. Def.s’ Facts ¶ 25; PL’s Facts ¶¶ 24-25.
According to plaintiff, after he and Cpt. Eldridge left Dr. Filson, Cpt. Eldridge said in front of other employees, “so you are going to the Fifth District and kill Lieutenant Netter.” PL’s Facts ¶ 26. Plaintiff responded that he had not said that, but that he would simply defend himself if attacked again by Lt. Netter. Id. ¶ 27. Again, according to plaintiff, Cpt. Eldridge then stated that plaintiff was making another threat and plaintiff responded that he would not allow Lt. Netter “to attack him, beat him and draw his gun on him and do nothing about it.” PL’s Facts ¶28. Plaintiff was released from the Clinic.
Cpt. Eldridge states that immediately following plaintiffs departure from the Clinic, he began the process of applying for a warrant for plaintiffs arrest. Def.s’ Facts ¶ 27. Cpt. Eldridge prepared an affidavit regarding the alleged threats plaintiff made at the Clinic and brought the application to the United States Attorney’s Office for review. Def.s’ Facts ¶¶ 27-28. Assistant United States Attorney (“AUSA”) John Tishner, Chief of the Grand Jury Section, reviewed the warrant. Cpt. Eldridge and AUSA Tishner then called AUSA Clifford Keenan, and both attorneys determined that the U.S. Attorney’s Office should approve the warrant. Def.s’ Facts ¶¶ 29-30. Cpt. Eldridge then presented the warrant to the Honorable Ronna L. Beck, and Judge Beck signed the warrant for plaintiffs arrest. Def.s’ Facts ¶ 31.
According to Cpt. Eldridge, he notified Commander Greene that he had a warrant for plaintiffs arrest, and asked her to provide an official from her division to pick up the warrant and bring it to the Office of Professional Responsibility. Def.s’ Facts ¶ 32.
The following day, which was Christmas Day, December 25, 2004, plaintiff received a phone call from a Lieutenant Sanders and was told to report to the Fifth District to see Commander Greene. PL’s Fаcts ¶ 31. Plaintiff left his child and the child’s mother and reported to the Fifth District, where he was informed that there was a warrant for his arrest. Id. ¶¶ 31-33. Agent Murphy from the Internal Affairs Division explained that they had called plaintiff to the Fifth District because they did not want to arrest him at his home on Christmas and “drag him out of his house.” Id. ¶ 34. Plaintiff was then placed under arrest for making felony threats and transported by Agent Murphy and Lieutenant McKeon to the Internal Affairs Division and then to the Central Cell Block for processing. Id. ¶¶ 35-40. Plaintiff was detained overnight and arraigned the following day, after which he was released on his own recognizance under order to stay away from Lt. Netter and the Fifth District. Id. ¶ 42.
On December 26, 2005, Cpt. Eldridge attempted to collect witness information for his investigation into the events at the Clinic, but the three witnesses could not confirm hearing plaintiffs statements. Def.s’ Facts ¶ 35. According to the defendants, Cpt. Eldridge had no further involvement in the investigation of plaintiff. Id. ¶ 36.
The felony threat charge against plaintiff was ultimately reduced to a misdemeanor charge of attempting to make a threat, and on May 21, 2004, a trial commenced before the Honorable Stephen G. *340 Milliken. Pl.’s Facts ¶¶43, 45. At the conclusion of the trial, Judge Milliken ruled that a reasonable fact finder would have to harbor a reasonable doubt as to intent and therefore he found Officer Jackson not guilty. Def.s’ Factsfl 37; Def.s’ Mot. Ex. 3 (Criminal Hearing Transcript) (“And whether he said exactly the words that Captain Eldridge testified to, I’m satisfied that the Government establishes the threat on a life. In [sic] the phrase kill him was uttered even though in the context I find that any reasonable fact finder would have to harbor a reasonable doubt as to the intent.”)
II. DISCUSSION
A. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be grantеd only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett,
In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
B. Analysis
Based on the events surrounding his arrest and prosecution, plaintiff filed an eight-count complaint against the District of Columbia and Captain Eldridge seeking compensatory and punitive damages. Plaintiff asserts claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, defamation, negligеnce, and denial of civil rights under 42 U.S.C. § 1983. Second Amended Complaint, docket no. 18, dated October 11, 2005.
As discussed below, defendants argue that they are entitled to summary judgment on all of plaintiffs claims on the grounds that (1) Cpt. Eldridge is entitled to qualified immunity; (2) Cpt. Eldridge had probable cause to arrest plaintiff; (3) plaintiff cannot establish the elements of his malicious prosecution and intentional infliction of emotional distress claims; (4) plaintiff failed to provide an expert witness to testify to the national standard of care for procedures regarding obtaining an arrest warrant; (5) the District of Columbia cannot be held liable for constitutional violations committed by its employees under a theory of respondeat superior; and (6) plaintiffs defamation claim must fail because Cpt. Eldridge’s statements are subject to qualified immunity.
1. Whether Captain Eldridge is Entitled to Qualified Immunity from Suit on Plaintiffs Constitutional Claims
Defendants argue that under certain circumstances, government officials
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are entitled to qualified immunity from constitutional and statutory claims. Def.s’ Mot. 8-12;
see, e.g., Saucier v. Katz,
Plaintiff does not disagree with defendant’s statement of the relevant law governing qualified immunity, but argues that Captain Eldridge violated plaintiffs right to be free from unreasonable seizures when he applied for an arrest warrant and had plaintiff arrested without probable cause. PL’s Opp. 14-18. According to plaintiff, the “appropriate question to determine whether qualified immunity exists is whether a reasonably well-trained officer would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant.” Id. at 14.
It is important to note, again, that plaintiff does not dispute the relevant facts upon which Cpt. Eldridge based his decision to apply for a warrant, but instead plaintiff argues that Cpt. Eldridge read too much into those facts or misconstrued them. “Where the facts are nоt in dispute the question of probable cause is one of law to be decided by the court.”
Dent v. May Dept. Stores Co.,
In
Malley v. Briggs,
a state trooper presénted a judge with warrants and аccompanying affidavits describing two phone calls that had been recorded pursuant to a wiretap, and the officer’s interpretation of those calls.
The U.S. Court of Appeals for the First Circuit reversed the District Court. The appellate court held that “an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless
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the officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are sufficient to establish probable cause.”
Id.
at 339,
On appeal, the officer in
Malley
argued that he should be entitled to absolute immunity because the function of applying for an arrest warrant is similar to that of a complaining witness or a prosecutor asking a grand jury to indict a suspect.
Id.
at 340-41,
Accordingly, we hold that the same standard of objective reasonableness that we applied in the context of a suppression hearing in [United States v.] Leon[,468 U.S. 897 ,104 S.Ct. 3405 ,82 L.Ed.2d 677 (1984)], defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest. Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.
Id.
at 344-45,
In this case, defendants respond to plaintiffs argument by noting that the Supreme Court has held that the facts must be evaluated from the perspective of a reasonable officer on the scene, without the use of hindsight. Def.s’ Mot. 3 (citing
Graham v. Connor,
2. Plaintiffs False Arrest and False Imprisonment Claims
Defendants argue that plaintiffs false arrest and false imprisonment claims should be dismissed because Cpt. Eldridge was justified in ordering the arrest and the arrest was based on probable cause. Def.s’ Mot. 12. As defendants point out, the principal question in false arrest and false imprisonment cases is “whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails.”
Scott v. District of Columbia,
*343 In this case, the question is whether “the facts and circumstances” known to Cpt. Eldridge would “warrant a prudent man to believe” that plaintiff had committed the offense of making a threat to do bodily harm. D.C.Code § 22-407, Threats to do bodily harm, provides:
Whoever is convicted in the District of threats to do bodily harm shall be fined not more than $500 or imprisoned not more than 6 months, or both, and, in addition thereto, or in lieu thereof, may be required to give bond to keep the peace for a period not exceeding 1 year.
Under this statute, the threat need not be expressly conveyed to the intended victim.
See Gurley v. United States,
In this case, Cpt. Eldridge observed plaintiff at the Clinic, where plaintiff was seen by a doctor and referred for a behavioral health evaluation. According to the evidence presented, the doctor brought the PD-42 to Cpt. Eldridge’s attention because it contained a statement by plaintiff that if left alone, the situation with Lt. Netter “will become deadly.” Cpt. Eldridge learned that there had been an altercation between plaintiff and Lt. Netter, and when Cpt. Eldridge spoke to plaintiff about being placed on limited duty and returning to the Fifth District, plaintiff told Cpt. Eldridge that if Lt. Netter came “at [him]” again, plaintiff would “kill him.” Under these circumstances, the Court finds that Cpt. Eldridge could have reasonably believed that plaintiff had committed an offense and therefore probable cause existed for the arrest.
See Dent,
3. Plaintiffs Malicious Prosecution Claim
To succeed on a claim for malicious prosecution, a plaintiff must establish: (1) that the underlying suit terminated in thе plaintiffs favor; (2) malice on the part of the defendant; (3) lack of probable cause for the underlying suit; and (4) special injury occasioned by the plaintiff as a result of the original suit.
See Tyler v. Central Charge Serv., Inc.,
As has already been discussed, probable cause existed to arrest plaintiff based on the events that took place at the Clinic. Moreover, plaintiff cannot establish malice on the part of Cpt. Eldridge. Malice is established by demonstrating “the existence of a willful, wanton, reckless, or oppressive disregard for the rights of the plaintiff.”
Tyler,
Plaintiff argues that defendant acted with malice in seeking the arrest warrant without an investigation, demonstrating a reckless disregard for plaintiffs right to be free from unreasonable seizures. Pl.’s Opp. 23. The Court is unpersuaded by this argument. As defendant correctly points out, Cpt. Eldridge did not arrest *344 plaintiff on the spot, but instead sought a warrant for his arrest. Def.s’ Mot. 15. Cpt. Eldridge contacted the U.S. Attorney’s Office and discussеd the warrant application with an AUSA and the Section Chief. Thereafter, he brought the application to a judge, who signed the warrant. On these undisputed facts, the Court finds that Cpt. Eldridge did not act with malice. The Court grants summary judgment for the defendants on plaintiffs malicious prosecution claim.
4. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress, plaintiff must show that the defendant (1) engaged in extreme and outrageous conduct that (2) intentionally or recklessly (3) caused him severe emotional distress.
See Gregg v. Hay-Adams Hotel,
Plaintiff again argues that Cpt. El-dridge’s decision to seek a warrant based on the events at the Clinic was unreasonable — particularly where Cpt. Eldridge knew that plaintiff was at the Clinic to seek medical attention due to stress caused by his interactions with Lt. Netter — and that probаble cause was lacking. Pl.’s Opp. 23-25. The Court has already found otherwise. Plaintiff also maintains that arresting him on Christmas Day, detaining him overnight and subjecting him to a criminal trial caused him severe mental anguish and constituted intentional infliction of emotional distress. Pl.’s Opp. 23-25; Second Amended Complaint Count IV.
Nothing in these facts even approaches the requisite standard of “outrageousness.” It cannot be said that the arrest and prosecution of plaintiff was “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Bernstein,
5. Defamation
In Count V of his Second Amended Complaint, plaintiff claims that defendants are liable for defamation based on Cpt. Eldridge’s false and slanderous statements made in connection with seeking the arrest warrant and having plaintiff prosecuted for making threats. Plaintiff argues that Cpt. Eldridge was at least negligent in making false statements to Dr. Filson, Commander Greene, Lt. Netter, the official to whom Cpt. Eldridge applied for a warrant, and in open court during plаintiffs trial. PL’s Opp. 28-29 (citing
Beeton v. District of Columbia,
In response, defendant notes that while charging someone with a crime is actionable as slander
per se, see Farnum v. Colbert,
In this case, plaintiff has made no showing that Cpt. Eldridge made the statements regarding plaintiffs threats in bad faith. Moreover, there was no excessive publication; as in Smith, Cpt. Eldridge’s statements were made in the course of his duties and were made to individuals — Dr. Filson, Lt. Netter, Commander Greene, the AUSAs, the judge signing the warrant and the judge presiding over the trial — with legitimate interests in receiving the communications. Because the statements were subject to qualified immunity, defendants are entitled to summary judgment on Count V of plaintiffs compliant.
6. The Remaining Counts for Negligence and Constitutional Violations
Plaintiff also brings claims for negligence and violations of his constitutional rights to due process and to be free from unlawful arrest and illegal imprisonment. Plaintiff bases his constitutional claims on the Fifth and Fourteenth Amendments to the U.S. Constitution, pursuant to 42 U.S.C. § 1983. However, because these claims are based on plaintiffs assertion that his arrest was without probable cause, and the Court has already determined that Cpt. Eldridge acted reasonably and had probable cause for the arrest, plaintiff cannot prevail on these claims. Moreover, Defendant District of Columbia cannot be held liable for the alleged constitutional violations because plaintiff has not established that the alleged deprivations were caused by a policy, custom or practice of the District.
See Monell v. New York City Dep’t of Soc. Servs.,
7. Plaintiffs Unlawful Retaliation Claim
Finally, plaintiff alleges that he was unlawfully terminated by the District of Columbia, in violation of 42 U.S.C. § 1983, in retaliation for bringing this lawsuit. Second Amended Complaint Count III. However, plaintiff has not alleged a single fact in support of this contention. Indeed, plaintiff does not even address his termination at all in his Statement of Material Facts in Dispute. Pl.’s Opp. 6-12. Moreover, defendant arguеs that a single incident of unconstitutional conduct cannot
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give rise to liability under § 1983 unless the incident was caused by an unconstitutional policy made by a policymaker.
See Oklahoma City v. Tuttle,
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED. An appropriate Order accompanies this Memorandum Opinion.
Notes
. Although the question of whether Officer Jackson agreed to remove the earring is irrelevant to the resolution of the motion for summary judgment, the Court notes that while Plaintiff's Statement of Facts contends that plaintiff said he would place the earring in his locker, plaintiff's testimony at the Trial Review Board contradicts that statement. Officer Jackson stated, “I'm currently a student in divinity ... and I made a covenant with God when I became ordained as a deacon that I would take something as a sign that showed the light of him in my life. I was written up for this — that very same thing back in February 2003, which I served 10 days with no problem because if I'm wrong, if I'm guilty, I'll take my hit. I don’t run from trouble. But if I want tо stand for something, I've got to clearly stand for it. And since I stood for my earring and let God know that I was being true and faithful to him, at that point, I said, I can make conveniences or I can make arrangements to see to it that when I'm working on duty that I cover it up, which I did. And that’s the reason I wear the earring.” Defendants' Motion for Summary Judgment ("Def.s’ Mot.”), Ex. 2 (Excerpts from the Trial Review Board) at 173. And when asked "But you entered a plea of guilty to the charge of wearing, of the earring was [sic] in violation of Department orders?,” Officer Jackson answered "Yes, it was.” Id.
. Plaintiff suggests an actual dispute regarding whether Dr. Matera first showed Cpt. Eldridge the PD-42, as Cpt. Eldridge states in his affidavit, or whether Cpt. Eldridge reviewed the PD-42 and then consulted the doctor. Pl.’s Opp. 16; Def.s’ Mot. Ex. A ¶ 5. While any discrepancy on this point would not rise to the level of a material factual dispute and is not critical to the Court's analysis, the Court notes that Dr. Matera’s testimony is not inconsistent with Cpt. Eldridge’s. Def.s’ Reply Ex. 5 (Dr. Matera’s Testimony) pp. 13-14 (“I would have to read it again. It was, obviously, a concern in a line or two that he had written down that he did not express what he wrote in his 42 to me. That's why I wrote notes no suicidal, homicidal ideation, but there was a line in the 42, if I remember correctly, that (indiscernible) I made sure that Captain Eldridge was aware of it.”)