UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) TERRYLENE SACCHETTI and ) ROBERT MANGANELLI, ) ) Plaintiffs, ) ) v. ) Civil Action No. 15-455 (RBW) ) GALLAUDET UNIVERSITY and ) the DISTRICT OF COLUMBIA, ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

The plaintiffs, Terrylene Sacchetti and Robert Manganelli, in their individual capacities

and as representatives of the Estate of Gianni Manganelli, bring this suit against defendants

Gallaudet University (“Gallaudet”) and the District of Columbia (the “District”), asserting

violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213 (2012),

and common law claims for false arrest. Compl. ¶¶ 160–272. Currently pending before the

Court are Defendant Gallaudet’s Motion to Exclude Testimony of [the] Plaintiff’s Expert

Michael Welner, M.D. (“Gallaudet’s 702 Mot.”); the Plaintiffs’ Motion to Strike the District of

Columbia’s Undisclosed Exhibits (“Pls.’ Mot. to Strike”), and the defendants’ motions for

summary judgment, see Defendant Gallaudet University’s Motion for Summary Judgment

(“Gallaudet’s Summ. J. Mot.”); Defendant the District of Columbia’s Motion for Summary

Judgment (“District’s Summ. J. Mot.”). Upon careful consideration of the parties’ submissions, 1

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) Gallaudet University’s Memorandum in Support of Its Motion for Summary Judgment (“Gallaudet’s Summ. J. Mem.”); (2) Defendant Gallaudet University’s Statement of Material Facts Genuinely Not at Issue in Support of Its Motion for Summary Judgment (“Gallaudet’s Facts”); (3) the Memorandum of Points and Authorities (continued . . . )

1 the Court concludes that it must grant Gallaudet’s motion to exclude the testimony of Dr.

Welner, deny the plaintiffs’ motion to strike the District’s exhibits, and grant in part, deny in

part, and hold in abeyance in part the defendants’ motions for summary judgment.

I. BACKGROUND

A. Factual Background

The following facts are undisputed by the parties, unless otherwise indicated. The

plaintiffs are the parents of Gianni Manganelli (“Manganelli”), see Gallaudet’s Facts ¶¶ 1–2;

Pls.’ Reply to Gallaudet’s Facts ¶¶ 1–2, who is now deceased, see Gallaudet’s Facts ¶ 164; Pls.’

Reply to Gallaudet’s Facts ¶ 164. Manganelli “was deaf from the age of two onward.”

Gallaudet’s Facts ¶ 3; see Pls.’ Reply to Gallaudet’s Facts ¶ 3. “During the summer of 2013,

[Manganelli] decided . . . to enroll at Gallaudet,” and he “accepted admission to Gallaudet [ ] for

the school year beginning August 2013.” Gallaudet’s Facts ¶¶ 45–46; see Pls.’ Reply to

Gallaudet’s Facts ¶¶ 45–46. Manganelli “and Spencer Opie became roommates at Gallaudet at

the start of the 2014 [s]pring semester.” Gallaudet’s Facts ¶ 64; see Pls.’ Reply to Gallaudet’s

Facts ¶ 64.

( . . . continued) in Support of Defendant District of Columbia’s Motion for Summary Judgment (“District’s Summ. J. Mem.”); (4) The District of Columbia’s Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment (“District’s Facts”); (5) the Plaintiffs’ Omnibus Response in Opposition to the Defendants’ Motions for Summary Judgment (“Pls.’ Summ. J. Opp’n”); (6) the Plaintiffs’ Statement of Genuine Issues of Material Fact in Support of Their Omnibus Opposition to the Defendants’ Motions for Summary Judgment (“Pls.’ Facts”); (7) the Plaintiffs’ Response to the District of Columbia’s Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment (“Pls.’ Reply to District’s Facts”); (8) the Plaintiffs’ Response to Defendant Gallaudet University’s Statement of Material Facts (“Pls.’ Reply to Gallaudet’s Facts”); (9) Gallaudet University’s Reply in Support of Its Motion for Summary Judgment (“Gallaudet’s Summ. J. Reply”); (10) Defendant the District of Columbia’s Reply to Plaintiff[s’] Opposition to Its Motion for Summary Judgment (“District’s Summ. J. Reply”); (11) Defendant Gallaudet University’s Memorandum in Support of Its Motion To Exclude Testimony of Plaintiffs’ Expert Michael Welner, M.D. (“Gallaudet’s 702 Mem.”); (12) the Plaintiffs’ Opposition to Defendant Gallaudet University’s Motion to Exclude Testimony of Plaintiff’s Expert Dr. Michael Welner (“Pls.’ 702 Opp’n”); (13) Defendant Gallaudet University’s Reply in Support of Its Motion to Exclude Testimony of Plaintiffs’ Expert Michael Welner, M.D. (“Gallaudet’s 702 Reply”); (14) Defendant the District of Columbia’s Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion to Strike Exhibits (“District’s Strike Opp’n”); and (15) the Plaintiffs’ Memorandum in Reply to the District of Columbia’s Opposition to the Plaintiffs’ Motion to Strike Undisclosed Exhibits (“Pls.’ Strike Reply”).

2 1. Manganelli’s Interactions with Opie on March 28, 2014

“Around midday on Friday, Marc[h] 28, 2014, [ ] Manganelli . . . was in his dorm[itory]

room folding clothes when . . . Opie . . . walked in and tried to talk to him.” Pls.’ Facts ¶ 1; see

Gallaudet’s Facts ¶ 73 (asserting that “on March 28, 2014, [Opie] returned to the dorm[itory]

room”). Manganelli “just stared [blankly at Opie], with no response,” Pls.’ Facts ¶ 1; see

Gallaudet’s Facts ¶ 74 (asserting that Manganelli “stared menacingly at [ ] Opie”), which “Opie

thought . . . was odd” behavior, Pls.’ Facts ¶ 3 (citing Pls.’ Summ. J. Opp’n, Exhibit (“Ex.”) K

(Deposition of Spencer Opie (May 4, 2017) (“Opie Dep.”)) 83:10–15). According to Opie,

Manganelli’s “behavior had been strange since Spring Break,” and Manganelli “seemed scared

and paranoid.” Id. ¶ 2 (citing Pls.’ Summ. J. Opp’n, Ex. K (Opie Dep.) 81:24–82:6). Manganelli

“went to the bathroom[,] and when he came back[, he] said that ‘[Opie] had ruined everything,’”

id. ¶ 4 (quoting Pls.’ Summ. J. Opp’n, Ex. K (Opie Dep.) 31:11–13), and he “drew an imaginary

line down the middle of the room and asked Opie to stay on his side” of the line, id. ¶ 6; see

Gallaudet’s Facts ¶ 74 (asserting that Manganelli “told [Opie] that he was mad at [him], that [ ]

Opie had ‘ruined everything,’ and insisted that [ ] Opie stay on his side of the room”). Then,

“Opie ‘got up’ and approached” Manganelli, and in response, Manganelli “‘almost raised his

hand openly and then he left.’” Pls.’ Facts ¶ 7 (quoting Pls.’ Summ. J. Opp’n, Ex. K (Opie Dep.)

31:18–20); see Gallaudet’s Facts ¶ 75 (“Opie testified that [Manganelli] raised a hand as if to hit

him but did not make contact, storming out of the room instead.”).

Manganelli “went directly to the bathroom,” and “Opie immediately pursued [him].”

Pls.’ Facts ¶¶ 8–9. On the way, “Opie ran into a friend, John, in the hallway, and . . . [they both]

went into the bathroom,” where “[t]hey found [Manganelli] in a shower stall.” Id. ¶¶ 10–11; see

Gallaudet’s Facts ¶ 76 (“Opie testified that he went to look for [Manganelli] and that he and a

friend, John Delatto, found [Manganelli] hiding in the men’s shower.”). “Opie confronted 3 [Manganelli,] asking[,] ‘What’s wrong with you?’” Pls.’ Facts ¶ 13 (quoting Pls.’ Summ. J.

Opp’n, Ex. K (Opie Dep.) 33:11–12). In response, Manganelli “pulled his arm back but did not

swing at Opie,” id. ¶ 14, and “John stepped in between Opie and [Manganelli],” id. ¶ 15.

Manganelli “told Opie and John to leave him alone,” id. ¶ 16, and “Opie and John left the

bathroom,” id. ¶ 17, with “John [telling] Opie that ‘[Manganelli] seems pretty emotional, just let

him be,’” id. ¶ 18.

Following this incident, Manganelli “went to class.” Id. ¶ 19. Afterward, he “made a

report to [a] [r]esident [a]ssistant, . . . advising her that he had been violated by . . . Opie, who

had walked into him intentionally while he was in the shower after [he] made it clear to [Opie]

that [Opie] was to leave him alone.” Id. ¶ 43 (second and third alterations in original) (internal

quotation marks omitted). The resident assistant then “authored and submitted an incident report

documenting [Manganelli’s] concerns about [ ] [Opie] . . . , which was routed to Adrienne

Morgan, [a] Coordinator of Residential Education (CRE) at Gallaudet.” Id. ¶ 44. Then,

Manganelli “went to see [ ] Morgan,” id. ¶ 45, “and told her he was concerned about Opie’s

personal violations and asked [her] for another room,” id. ¶ 47; see Gallaudet’s Facts ¶ 82

(asserting that Manganelli “visited [ ] Morgan[] . . . to ask[] for another room because he felt that

his roommate . . . had violated his boundaries and he no longer felt safe”). However,

“Morgan[] . . . rejected his request.” Pls.’ Facts ¶ 53; see Gallaudet’s Facts ¶ 83 (“Morgan

inquired, but she did not feel [Manganelli]’s explanation justified an emergency room re-

assignment.”).

“In the meantime, . . . Opie . . . ran into a friend, Jason Scherrenberg.” Pls.’ Facts ¶ 37.

After “explain[ing to Scherrenberg] what happened with [Manganelli] earlier that afternoon,” id.

¶ 39, “Scherrenberg offered to let Opie stay at his room for the night,” id. ¶ 38. “Around

4 midnight, [ ] Opie returned to [his] dorm[itory] with [ ] Scherrenberg to collect [his] belongings

from [his] room.” Gallaudet’s Facts ¶ 87; see Pls.’ Reply to Gallaudet’s Facts ¶ 87. When “Opie

went up to the room and opened the door,” Pls.’ Facts ¶ 60, Manganelli “did not say anything to

Opie,” id. ¶ 61. However, “when Scherrenberg tried to come into the room[,] [ ] [Manganelli]

got up from where he was sitting,” id. ¶ 63, and “told Scherrenberg that he did not know him and

did not want him in his room,” id. ¶ 64. Manganelli “asked Scherrenberg to leave,” id. ¶ 65, but

“Scherrenberg resisted and would not leave,” id. ¶ 66. In response, Manganelli “approached

Scherrenberg and told [him] that he [ ] would fight him [ ] if Scherrenberg [did not] leave.” Id.

¶ 67. “Scherrenberg and Opie left without getting Opie’s toiletries.” Id. ¶ 68.

Then, “Opie and [ ] Scherrenberg went to Laura Crowder, the Residential Assistant [ ] for

[the dormitory], to report what happened.” Gallaudet’s Facts ¶ 89; see Pls.’ Reply to Gallaudet’s

Facts ¶ 89. “Crowder prepared a report of the incident on Gallaudet’s reporting system,”

Gallaudet’s Facts ¶ 90; see Pls.’ Reply to Gallaudet’s Facts ¶ 90, and, according to Crowder, she

“also contacted Gallaudet’s [Department of Public Safety (“DPS”)] via instant message,”

Gallaudet’s Facts ¶ 91; see Pls.’ Reply to Gallaudet’s Facts ¶ 91 (“[a]dmitting that [ ] Crowder

claims to have contacted DPS”). Meanwhile, Manganelli “sent an email to Gallaudet CRE

Thuan Nguyen, at 12:38 a.m.,” Pls.’ Facts ¶ 72, which described the incident in the bathroom,

stated that Manganelli was “afraid for [his] safety around” Opie, and requested that Nguyen

“assign [him] to a different room immediately,” id. (internal quotation marks and citation

omitted); see Gallaudet’s Facts ¶ 92 (asserting that Manganelli “sent an email complaining about

the incident to . . . Nguyen”).

2. Manganelli’s Interactions with Gallaudet DPS Officers

Thereafter, at “[a]bout 12:30 a.m. [on March 29, 2014], DPS dispatched Lieutenant

Daniel Bauer . . . via text” to Manganelli and Opie’s room. Gallaudet’s Facts ¶ 93; see Pls.’ 5 Reply to Gallaudet’s Facts ¶ 93 (“[a]dmitting that Bauer was dispatched by Gallaudet to respond

to a room in the dorm[itory], which was ultimately discovered to belong to [Manganelli] and

Opie”). 2 According to Lieutenant Bauer’s deposition testimony, which the plaintiffs dispute, see

Pls.’ Reply to Gallaudet’s Facts ¶¶ 93, 95–108, 3 the text message “stat[ed] that there was ‘a man

in a room hurting ten [ ] people,’” Pls.’ Facts ¶ 74 (quoting Pls.’ Summ. J. Opp’n, Ex. A

(Deposition of Lieutenant Daniel Bauer (Mar. 6, 2017) (“Bauer Dep.”)) 22:1–23:8). However, it

is undisputed that, at the time he received the message, Lieutenant “Bauer did not know

[Manganelli] or that it was his dorm[itory] room.” Gallaudet’s Facts ¶ 100; see Pls.’ Reply to

Gallaudet’s Facts ¶ 100.

“At about 12:45 a.m.[,] . . . [Lieutenant] Bauer arrived at [Manganelli’s] door.” Pls.’

Facts ¶ 73. According to Lieutenant Bauer’s testimony, which, again, the plaintiffs dispute in

many respects, see Pls.’ Reply to Gallaudet’s Facts ¶¶ 96–107, the following events ensued:

“Upon arriving at [Manganelli]’s dorm[itory] room . . . , [Lieutenant] Bauer sent a text [message]

requesting back up[,] [and] then waited in the hallway outside the dorm[itory] room for his

backup to arrive.” Gallaudet’s Facts ¶ 96; see Pls.’ Reply to Gallaudet’s Facts ¶ 96

(“[a]dmitt[ing] that [Lieutenant] Bauer requested backup,” but “[d]en[ying] that he waited in the

hallway”). “While [Lieutenant] Bauer waited in the hallway, [Manganelli] opened the door to

2 The plaintiffs deny that Bauer was dispatched at 12:30 a.m., see Pls.’ Reply to Gallaudet’s Facts ¶ 93, but they do not identify any facts which suggest that he was dispatched at a different time, see id., and they admit that Bauer arrived at Manganelli’s room “at about 12:45 a.m.,” Pls.’ Facts ¶ 73. 3 The plaintiffs assert that “there are conflicts within [Lieutenant Bauer’s] testimony as well as from the testimony of others, including Kalina Johnson, which undermine[] the credibility of the factual assertions [Lieutenant] Bauer makes.” Pls.’ Reply to Gallaudet’s Facts ¶ 107; see Pls.’ Facts ¶¶ 97–98 (asserting that Lieutenant “Bauer claimed that [Manganelli] had his hands behind his back during their exchange at the threshold of [Manganelli’s] room,” but “testified that [Manganelli] was using his hands to sign during their exchange”). However, the Court need not determine whether these conflicts create a genuine factual dispute because, as discussed infra, see Part III.B.1, even accepting Lieutenant Bauer’s testimony as true, that testimony is not sufficient to demonstrate that Gallaudet is entitled to summary judgment on the plaintiffs’ false arrest claim as a matter of law.

6 [the] room,” Gallaudet’s Facts ¶ 97, and Lieutenant Bauer observed that “the lights inside [the

room] were out,” id. ¶ 98; see Pls.’ Reply to Gallaudet’s Facts ¶ 98 (“[a]dmitting that the lights

were out when the door was opened”). Lieutenant “Bauer asked [Manganelli] to step out into the

hall and talk to him.” Gallaudet’s Facts ¶ 100. When Manganelli “did not respond[,] [ ]

[Lieutenant] Bauer asked him to step out [of the room] and speak with him a second time.” Id.

¶ 101. At some point, Manganelli “began signing . . . to ask why he was being told to step out of

his own room.” Pls.’ Facts ¶ 89; see Gallaudet’s Facts ¶ 102 (“[Manganelli] asked why he

needed to step out of the room.”). “[Lieutenant] Bauer explained to [Manganelli] that he had a

report that there were injured people in the room.” Gallaudet’s Facts ¶ 104. Manganelli “did not

respond, at which point, [Lieutenant] Bauer informed [Manganelli] that if he would not

cooperate, [he] would need to place him in handcuffs for both of their safety.” Id. ¶ 105. After

Manganelli “did not respond[,] . . . [Lieutenant] Bauer placed him in handcuffs.” Id. ¶ 106.

According to Resident Assistant Kalina Johnson, who testified that she had arrived at

Manganelli’s room shortly after Lieutenant Bauer arrived, see Pls.’ Facts ¶¶ 106–08, Lieutenant

“Bauer told [Manganelli] he was under arrest,” id. ¶ 113 (citing Pls.’ Summ. J. Opp’n, Ex. B

(Deposition of Kalina Johnson (May 15, 2017) (“Johnson Dep.”)) 35:13–15).

Sometime thereafter, “DPS Captain Patrick Rader responded to the scene as the backup

requested by [Lieutenant] Bauer.” Gallaudet’s Facts ¶ 109; see Pls.’ Reply to Gallaudet’s Facts

¶ 109. “Once on [the] scene, [Captain] Rader checked [Manganelli]’s room[.]” Pls.’ Facts

¶ 115; see Gallaudet’s Facts ¶ 111 (asserting that Lieutenant Bauer and Captain Rader “swept the

dorm[itory] room”). According to testimony from Captain Rader and Lieutenant Bauer, which

the plaintiffs dispute, see Pls.’ Reply to Gallaudet’s Facts ¶ 111–14, “after Lieutenant Bauer told

[Captain Rader] what had happened, [Captain Rader] explained to [Manganelli] why he was

7 being detained,” Pls.’ Summ. J. Opp’n, Ex. D (Deposition of Captain Patrick Rader (Mar. 6,

2017) (“Rader Dep.”)) 38:18–20. Because he was handcuffed behind his back, Manganelli “was

signing . . . off to the side of his body, ‘[w]hy, why, why,’” id., Ex. D (Rader Dep.) 39:13–14, so

Captain Rader “asked [Manganelli], ‘[a]re you going to give us a problem if I handcuff you in

the front?,’” id., Ex. D (Rader Dep.) 39:25–40:2; see id., Ex. A (Bauer Dep.) 51:5–6 (testifying

that Captain “Rader asked [Manganelli] if we could handcuff him in the front, that way he could

communicate much easier”). However, Manganelli “did[] [not] say anything” in response. Id.,

Ex. D (Rader Dep.) 40:11. Then, Captain Rader “told [Manganelli] that [he] was going to take

[Manganelli’s] handcuffs off and move [them] to being handcuffed in the front,” and again “said,

‘[a]re you going to give us a problem if I do that?’” Id., Ex. D (Rader Dep.) 40:20–23. Again,

Manganelli “did[] [not] say anything.” Id., Ex. D (Rader Dep.) 40:23–24. Captain Rader

testified that although Manganelli “did[] [not] reply to [his] question, [he] felt that

communication was important,” id., Ex. D (Rader Dep.) 40:23–41:1, so he uncuffed “one wrist,”

id., Ex. D (Rader Dep.) 41:8–10; see Pls.’ Facts ¶ 124 (“The officer released a handcuff from one

of [Manganelli’s] wrists, leaving the other wrist secured[.]”), and he and Lieutenant Bauer

“moved [Manganelli’s] hands to the front of his body,” Pls.’ Summ. J. Opp’n, Ex. D (Rader

Dep.) 42:7–8.

According to Gallaudet, “as soon as the handcuffs came off, [Manganelli] began

resisting.” Gallaudet’s Facts ¶ 112; see Pls.’ Summ. J. Opp’n, Ex. D (Rader Dep.) 42:25–43:4

(testifying that Manganelli “was physically struggling” and “would[] [not] let [the officers]

recuff him”). Captain Rader testified that during this process, Manganelli “kept saying,

‘ . . . why are you arresting me?’” Pls.’ Summ. J. Opp’n, Ex. D (Rader Dep.) 42:17–18. Captain

Rader further testified that he and Lieutenant Bauer “were trying to explain to [Manganelli] that

8 he[] [was] being detained and [ ] he need[ed] to stop, but [Manganelli] refused.” Id., Ex. D

(Rader Dep.) 42:18–20. Although the plaintiffs largely dispute this account, see Pls.’ Reply to

Gallaudet’s Facts ¶¶ 112–13, they agree that when the officers “were moving the handcuffs to

the front[,] [ ] [Manganelli] ‘was signing in the process,’” Pls.’ Facts ¶ 126 (quoting Pls.’ Summ.

J. Opp’n, Ex. D (Rader Dep.) 44:13–23); see id. ¶ 129 (“[W]hen the handcuff was released from

one wrist, [Manganelli] brought his arms around and was trying to use his hands to

communicate[.]”). Ultimately, “[Lieutenant] Bauer and [Captain] Rader took [Manganelli] to the

ground and re-cuffed him.” Gallaudet’s Facts ¶ 114; see Pls.’ Reply to Gallaudet’s Facts ¶ 114

(“[a]dmitt[ing] that [Lieutenant] Bauer and [Captain] Rader took [Manganelli] to the ground and

re-cuffed his hands behind his back”). Captain Rader testified that he then “texted the

dispatcher” and told the dispatcher that they “needed [the Metropolitan Police Department

(“MPD”)].” Pls.’ Summ. J. Opp’n, Ex. D (Rader Dep.) 48:5–8.

At some point thereafter, “Opie returned to the dorm[itory] [ ] with [ ] Scherrenberg.”

Gallaudet’s Facts ¶ 120; see Pls.’ Reply to Gallaudet’s Facts ¶ 120. According to their

testimony, when they arrived, Manganelli “was already in custody and [ ] face down [on the

floor] in handcuffs.” Pls.’ Facts ¶ 159. By then, “Morgan [had also] arrived on [the] scene.”

Gallaudet’s Facts ¶ 119; see Pls.’ Reply to Gallaudet’s Facts ¶ 119. Although the parties dispute

who Opie, Scherrenberg, and Morgan spoke to and what they spoke about, they agree that “Opie

told DPS that [Manganelli] was bipolar.” Gallaudet’s Facts ¶ 124; see Pls.’ Reply to Gallaudet’s

Facts ¶ 124. “[T]he DPS officers and [ ] Morgan searched [Manganelli’s] dorm[itory] room for

medication,” but “did not find [any] psychiatric medication.” Gallaudet’s Facts ¶¶ 125–26; see

Pls.’ Reply to Gallaudet’s Facts ¶¶ 125–26.

9 3. Manganelli’s Interactions with the MPD Officers

At 1:03:36 a.m. on March 29, 2014, the “District [received a] call from Gallaudet

requesting District officers to respond.” Pls.’ Facts ¶ 140; see District’s Facts ¶ 11 (asserting that

“[]DPS[] called 9-1-1 to report that a male student was acting very irate, fighting school

security[,] and acting strange”). At 1:04:02 a.m., MPD “[O]fficers [Cassandra] Velez[ and

Christopher] Lehigh [were] [ ] dispatched to Gallaudet,” and at 1:10:02 a.m., they “arrive[d] on

[the] scene.” Pls.’ Facts ¶ 140; see District’s Facts ¶ 12. Then, at 1:10:51 a.m., MPD “Officer

John Armstrong . . . [wa]s dispatched to pick up [Manganelli].” Pls.’ Facts ¶ 153; see District’s

Facts ¶ 12. Although the parties largely dispute who the MPD officers spoke to on the scene and

what they discussed, it is undisputed that “Officer Armstrong transported [Manganelli] to MPD’s

Fifth District Station” (the “Fifth District Station”) at 1:32 a.m. District’s Facts ¶ 22; see Pls.’

Facts ¶ 171 (asserting that Officer “Armstrong le[ft] Gallaudet with [Manganelli]” at 1:32:59

a.m.). It is also undisputed that, “[f]ollowing . . . removal of [Manganelli] from the dorm[itory]

by MPD, [ ] Opie and [ ] Scherrenberg [ ] provided signed written statements to MPD,”

Gallaudet’s Facts ¶ 136; see Pls.’ Reply to Gallaudet’s Facts ¶ 136 (“[a]dmit[ting] that [ ]

statements provided by Opie and Scherrenberg were . . . provided after [Manganelli] had already

been arrested”), and “[t]hey also gave partially[] video recorded [oral] statements to MPD . . .

around 2:00 a.m.,” Gallaudet’s Facts ¶ 137; see Pls.’ Reply to Gallaudet’s Facts ¶ 137

(“[a]dmit[ting] [ ] that video recorded statements were taken at 2:00 a.m.”).

“Manganelli arrived at [the] Fifth District Station at 1:41 a.m.,” at which time “MPD

Officer Wesley Shifflett prepared [ ] arrest paperwork, . . . which charged Manganelli with

simple assault domestic violence and threats to do bodily harm.” District’s Facts ¶ 28; see Pls.’

Reply to District’s Facts ¶ 28. According to Officer Shifflett’s testimony, “as [he] prepared the

arrest paperwork, he communicated with Manganelli through handwritten notes.” District’s 10 Facts ¶ 29; see Pls.’ Reply to District’s Facts ¶ 29 (“[a]dmitt[ing] that Officer Shifflett testified

as such”). At some point thereafter, “Manganelli was transported from MPD’s Fifth District

Station to the Central Cell Block . . . [at] MPD’s headquarters.” District’s Facts ¶ 30; see Pls.’

Reply to District’s Facts ¶ 30. And, “[l]ater . . . [that] morning . . . , Manganelli was transferred

to the custody of the U.S. Marshal[s] [Service] and was held in a lock-up in the basement of the

District of Columbia Superior Court while he was awaiting [presentment].” District’s Facts ¶ 35;

see Pls.’ Reply to District’s Facts ¶ 35. 4 “At some point . . . while Manganelli was awaiting

[presentment], [a] Pretrial Services [o]fficer . . . tried to make contact with Manganelli by calling

out his name into the . . . cell block,” District’s Facts ¶ 41; see Pls.’ Reply to District’s Facts

¶ 41; however, “Manganelli did not respond when his name was called,” and the officer

“completed [her pre-presentment] report without [Manganelli’s] input,” District’s Facts ¶ 42; see

Pls.’ Reply to District’s Facts ¶ 42.

Thereafter, Manganelli “appeared in Superior Court and received a no-contact order

requiring that he stay away from [his] dorm[itory] room . . . and stay away from [ ] Opie and [ ]

Scherrenberg.” Gallaudet’s Facts ¶ 139; see Pls.’ Reply to Gallaudet’s Facts ¶ 139. “After his

release on March 29, 2014, [Manganelli] went back to campus and [ ] DPS [ ] escort[ed] him to

his dorm[itory] room to collect some belongings.” Gallaudet’s Facts ¶ 140; see Pls.’ Reply to

Gallaudet’s Facts ¶ 140. After Manganelli “collected his items and left the dorm[itory, he] sent

several text[] [messages] to his mother[, plaintiff Sacchetti,] asking her to pick him up.”

Gallaudet’s Facts ¶ 143; see Pls.’ Reply to Gallaudet’s Facts ¶ 143. Thereafter, “Sacchetti

picked up [Manganelli] on campus.” Gallaudet’s Facts ¶ 147; see Pls.’ Reply to Gallaudet’s

Facts ¶ 147.

4 The parties have misidentified Manganelli’s court appearance as an arraignment because the appearance did not follow the issuance of an indictment and it is therefore properly identified as a presentment.

11 According to Sacchetti’s deposition testimony, “[o]nce they [arrived at] Sacchetti’s

apartment in Maryland, . . . [Manganelli] asked her to take him back to Gallaudet.” Pls.’ Reply

to Gallaudet’s Facts ¶ 153; see Gallaudet’s Facts ¶ 153 (asserting that “after they arrived back at

[Sacchetti’s] apartment[,] . . . [Manganelli] demanded to return to Gallaudet”). However,

“Sacchetti was supposed to pick up her . . . daughter from a birthday party,” Pls.’ Reply to

Gallaudet’s Facts ¶ 153, and when Manganelli “would not get back in the car,” id. ¶ 154,

“Sacchetti went to pick up her daughter . . . and [later] drove around looking for [Manganelli]

without success,” Gallaudet’s Facts ¶ 156; see Pls.’ Reply to Gallaudet’s Facts ¶ 156.

According to Sacchetti’s testimony, Manganelli “returned to [her] apartment around 5:00

a.m. on March 30, 2014.” Gallaudet’s Facts ¶ 157; see Pls.’ Reply to Gallaudet’s Facts ¶ 157.

“[S]he attempted to convince [Manganelli] to go to the hospital, and . . . he seemed to agree.”

Gallaudet’s Facts ¶ 161; see Pls.’ Reply to Gallaudet’s Facts ¶ 161. “[H]owever, [ ] once she left

the room [to get dressed], [Manganelli] went past her in the hallway and out the front door.”

Gallaudet’s Facts ¶ 162; see Pls.’ Reply to Gallaudet’s Facts ¶ 162. “Sacchetti . . . attempted to

follow [Manganelli], but she could not keep up, so she returned to the apartment and contacted

the police.” Gallaudet’s Facts ¶ 163; see Pls.’ Reply to Gallaudet’s Facts ¶ 163. “Shortly

thereafter, around 6:00 a.m., [Manganelli] was found deceased . . . in a local creek.” Gallaudet’s

Facts ¶ 164; see Pls.’ Reply to Gallaudet’s Facts ¶ 164. “The Office of the Medical Examiner for

the State of Maryland performed [a] Post-Mortem Examination and determined, among other

things, that[] [ ] [Manganelli] suffered multiple sharp force injuries including a . . . wound [ ]

across the abdomen . . . [and] drowned.” Pls.’ Facts ¶ 196; see Pls.’ Summ. J. Opp’n, Ex. 97

(Post Mortem Examination Report, Office of the Chief Medical Examiner (“Post Mortem

Examination Report”)) at 8. “Sacchetti testified that she later learned [Manganelli] had taken a

12 butcher knife from her kitchen when he left the apartment.” Gallaudet’s Facts ¶ 165; see Pls.’

Reply to Gallaudet’s Facts ¶ 165. The “[p]olice investigation showed that the manner of death

[wa]s SUICIDE.” Pls.’ Summ. J. Opp’n, Ex. 97 (Post Mortem Examination Report) at 8.

B. Procedural History

The plaintiffs filed this action against the defendants on March 30, 2015. See Compl. at

1. The Complaint asserts six causes of action based on common law claims for wrongful death,

negligent infliction of emotional distress, and false arrest, as well as claims for violations of the

ADA. See Compl. ¶¶ 160–272. On June 12, 2015, the defendants each filed a motion to dismiss

the plaintiffs’ Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6). See Defendant Gallaudet University’s Motion to Dismiss Plaintiffs’ Complaint

Pursuant to Federal Rule of Civil Procedure 12(b)(6); Defendant District of Columbia’s Motion

To Dismiss. Thereafter, the Court issued a memorandum opinion and order granting in part and

denying in part the defendants’ motions to dismiss. See Sacchetti v. Gallaudet Univ.,

(D.D.C. 2016). Specifically, the Court denied the motions with respect to the

plaintiffs’ common law false arrest claims against both defendants, as asserted in their sixth and

seventh causes of action, as well as the plaintiffs’ wrongful arrest and failure to accommodate

claims under the ADA against the District, as asserted in their fifth cause of action. 5 See

The

Court granted the motions with respect to the plaintiffs’ wrongful death/negligence, survival,

negligent infliction of emotional distress, and ADA claims against Gallaudet, as asserted in their

first, second, third, and fourth causes of action, as well as the plaintiffs’ failure to train claim

5 This cause of action is mislabeled the “Fourth Cause of Action” in the Complaint, compare heading above Compl. ¶ 230, with heading above id. ¶ 192, causing all subsequent causes of action to be mislabeled. For ease of reference, the Court has re-labeled this cause of action and the remaining causes of action by continuing the consecutive numbering, starting with the ADA claims asserted against the District, which begin at paragraph 230 of the Complaint.

13 under the ADA against the District, as asserted in their fifth cause of action. See id.

Thereafter, the parties conducted discovery, which closed on September 27, 2017. See

Min. Order (Aug. 4, 2017). Then, on December 18, 2017, following the close of discovery, the

defendants filed their motions for summary judgment, see Gallaudet’s Summ. J. Mot. at 1;

District’s Summ. J. Mot. at 1,6 and Gallaudet filed its motion to exclude the testimony of Dr.

Welner, a forensic psychiatrist designated by the plaintiffs as an expert pursuant to Federal Rule

of Evidence 702, see Gallaudet’s 702 Mot. at 1. On February 2, 2018, the plaintiffs filed their

motion to strike two exhibits attached to the District’s motion for summary judgment. See Pls.’

Mot. to Strike at 1. These motions are the motions that are the subject of this Memorandum

Opinion.

II. ANALYSIS

A. The Parties’ Evidentiary Motions

Before addressing the defendants’ summary judgment motions, the Court will first

address the parties’ evidentiary motions, since the resolution of these motions will impact the

Court’s analysis of the summary judgment motions.

1. Gallaudet’s Motion to Exclude Testimony of Dr. Welner

Gallaudet argues that the Court should exclude testimony proffered by the plaintiffs from

Dr. Michael Welner, see Gallaudet’s 702 Mem. at 1, who the plaintiffs have designated as an

expert on the issue of causation, see Pls.’ 702 Opp’n at 23. Specifically, Gallaudet argues that

Dr. Welner’s opinions should be excluded because they “fail to meet the threshold requirements

of reliability and relevance under [ ] Federal Rule[] of Evidence [702] and Daubert v. Merrell

6 The District had previously filed a motion for partial summary judgment on the plaintiffs’ false arrest claim against it, see Defendant District of Columbia’s Motion for Partial Summary Judgment at 1, which the Court denied in an Order issued on November 1, 2016, see Order at 10 (Nov. 1, 2016), ECF No. 41.

14 Dow Pharmaceuticals, Inc.,

(1993).” Gallaudet’s 702 Mem. at 1. As to relevance,

it argues that “Dr. Welner’s opinions are irrelevant because they do not relate to the applicable

legal standard” for causation. Id. at 20. As to reliability, it argues, inter alia, that Dr. Welner

“offers no factual support for his conclusions, nor any foundation in scientific evaluation or

analysis,” id. at 14, and does not “ever refer to a treatise, manual, study, or any other source of

scientific data that might support his purported diagnosis [that Manganelli was psychotic] or

conclusions regarding [Manganelli’s] alleged ‘hopelessness,’” id. at 15.

The plaintiffs respond that “Dr. Welner arrived at his opinions after reviewing an

extensive amount of [Manganelli]’s medical records and . . . other [relevant] documents . . . ,

[and] appl[ying] his extensive education, training, and experience as a forensic psychiatrist,

including experience forensically determining the cause of suicide, to those case-specific

materials.” Pls.’ 702 Opp’n at 14. They further argue that “several courts considering Daubert

challenges in similar contexts[] . . . have recognized this same methodology, often labeled a

‘psychological autopsy,’ as reliable and generally accepted in the mental health community.” Id.

(footnote omitted) (collecting cases).

“The admission of expert testimony is governed by Federal Rule of Evidence 702.”

United States v. Straker,

(D.C. Cir. 2015). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

15 Fed. R. Evid. 702. “In Daubert . . . , the Supreme Court held Rule 702 requires courts to ensure

that expert testimony is ‘not only relevant, but reliable.’” Heller v. District of Columbia,

(D.C. Cir. 2015) (quoting Daubert,

). As to reliability, “courts are

obligated to ‘determine whether [expert] testimony has a reliable basis in the knowledge and

experience of [the relevant] discipline.’”

(alterations in original) (quoting Kumho Tire Co. v.

Carmichael,

(1999)). In conducting this inquiry, “trial judges [must] focus on

experts’ ‘principles and methodology, not on the conclusions that they generate.’” United States

v. Day,

(D.C. Cir. 2008) (quoting Daubert,

). And,

“[a]lthough Daubert lists a number of factors that a court may consider in determining whether to

admit or exclude expert testimony, the Supreme Court made it clear that ‘[t]he inquiry

envisioned by Rule 702 is . . . a flexible one.’”

(omission in original) (quoting Daubert,

). Ultimately, a “trial judge must have considerable leeway in deciding in a particular

case how to go about determining whether particular expert testimony is reliable.” Kumho Tire,

. Finally, “[t]he proponent of the expert testimony bears the burden to establish

the admissibility of the testimony and the qualifications of the expert.” United States v. McGill,

(D.C. Cir. 2016).

The plaintiffs offer Dr. Welner’s testimony “to establish the causal connection between

the false arrest (and its consequences) and [the p]laintiffs’ injury and damages.” Pls.’ 702 Opp’n

at 23. On the issue of whether Manganelli’s arrest “ha[d] any causal relationship to his suicide,”

Gallaudet’s 702 Mot., Ex. B (Letter from Michael Welner, M.D., to Justin Grosz (May 30, 2017)

(“Welner Report”)) at 2, Dr. Welner states that “[i]t is [ ] [his] professional opinion, with a

reasonable degree of psychiatric certainty, that the arrest and its consequences precipitated [ ]

Manganelli’s suicide,”

Ex. B. (Welner Report) at 6. In his deposition, Dr. Welner further

16 opined that the arrest and the events flowing from it led Manganelli to “bec[o]me hopeless[, a]nd

hopeless[ness] has a direct relationship to suicide.” Pls.’ Summ. J. Opp’n, Ex. R (Deposition of

Michael Welner, M.D. (July 14, 2017) (“Welner Dep.”)) 114:12–13. Specifically, he observed

that Manganelli

left campus with a great sense of urgency[,] . . . at a time where several data points reflect the university’s rejection and repudiation of him, whether it be his arrest, whether it be the fulfillment of a separation order by kicking him out of his room, whether not making an emergency room available to him, or giving him any[]place to stay, whether it be that coupled with the lack of resolution of what was happening in a linguistics class that he was repeating, that the combination of these events contributed to his hopelessness about his prospects at Gallaudet.

Ex. R (Welner Dep.) 114:19–115:5. Regarding other potential causes of Manganelli’s

suicide, Dr. Welner further opined that

[n]o other stressors preceded [ ] Manganelli’s suicide, which occurred within hours of his eviction from campus. There is no evidence that it had been planned well in advance. [ ] Manganelli used a weapon that he acquired only just before he killed himself. He wrote no note. His toxology screen on autopsy was negative.

Gallaudet’s 702 Mot., Ex. B (Welner Report) at 6. He additionally testified that although it was

his opinion that prior to the arrest, Manganelli “was deteriorating psychiatrically[] and that [the

psychiatric deterioration] reflected psychosis,” Pls.’ Summ. J. Opp’n, Ex. R (Welner Dep.)

69:18–20, “suicide is not a symptom of psychosis,”

Ex. R (Welner Dep.) 227:18–19. 7

7 In addition to Dr. Welner’s testimony seeking to establish a causal link between the alleged false arrest and the plaintiffs’ damages, the plaintiffs have also proffered testimony from Dr. Welner on two other issues: (1) that Manganelli’s “suicide . . . could have potentially been prevented had [Gallaudet] provided [ ] Manganelli with alternative housing,” Gallaudet’s 702 Mot., Ex. B (Welner Report) at 9, or referred Manganelli to “established vehicles for mental health intervention” rather than to “arrest and incarceration,”

Ex. B (Welner Report) at 8–9; and (2) that “[b]ecause [ ] Sacchetti and [Robert] Manganelli had no information made available to them [about Manganelli’s arrest or the events that followed it], they had no wherewithal to report their son as a risk to himself or to others,”

Ex. B (Welner Report) at 12. Because the Court has dismissed the plaintiffs’ negligence claims against Gallaudet, see Sacchetti,

(dismissing the plaintiffs’ “wrongful death and survival claims, which are predicated on a theory of negligence,” and their negligent infliction of emotional distress claim), and the plaintiffs have not explained, nor is it otherwise apparent to the Court, how this testimony relates to the claims still remaining in this case, the Court must exclude it for failure to satisfy Rule 702’s relevance requirement. See Fed. R. Evid. 702(a) (providing that expert testimony must “help the trier of fact to understand the evidence or [ ] determine a fact in issue”); see also Daubert,

(“Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”).

17 Upon careful consideration of Dr. Welner’s proposed testimony as set forth in his report

and during his deposition, the Court cannot conclude that the “testimony is the product of

reliable principles and methods” or that Dr. Welner “has reliably applied the principles and

methods to the facts of this case.” Fed. R. Evid. 702. Even assuming that a “psychological

autopsy” would be a reliable method for assessing causation in this case, Dr. Welner does not

purport to have employed this method. Although he testified that he had given two lectures with

the term “psychological autopsy” in the title, see Pls.’ Summ. J. Opp’n, Ex. R (Welner Dep.)

18:20–21, 19:17–19 (referring to lectures given in 2015 and 1999), he does not make any other

references to a psychological autopsy in his report or deposition testimony or otherwise suggest,

at least not in any way discernible to the Court, that he used that method to formulate his

opinions in this case. To the extent that the plaintiffs assert that Dr. Welner’s analysis is

nonetheless reliable because it is consistent with descriptions of psychological autopsies

provided by experts in other cases, see Pls.’ 702 Opp’n at 14 n.4 (asserting that a psychological

autopsy is a “reconstructi[on of] an individual’s psychological life[,] particularly the person’s

lifestyle and those thoughts, feelings, and behaviors manifested during the weeks preceding

death” (quoting Giles v. Wyeth, Inc.,

(S.D. Ill. 2007))), the Court is

not in a position to opine on whether Dr. Welner’s methods in this case comport with a scientific

method that Dr. Welner has neither invoked nor explained, see Day,

(instructing that the reliability inquiry does not require “judges [to] become scientific experts”).

In any event, the cases relied upon by the plaintiffs suggest that a psychological autopsy

is more rigorous than the analysis conducted by Dr. Welner in this case. For example, in In re

Neurontin Marketing, Sales Practices, and Products Liability Litigation, the Court described a

psychological autopsy as “a standardized, systematic checklist which could be used to assemble

18 and organize information so that a qualified suicidologist or other appropriate health care

professional would have the information necessary to consider all of the various risk factors

which may or may not have contributed in a material way to any person’s suicide.” Civ. Action

No. 04-10981,

, at *6 (D. Mass. Aug. 14, 2009). Here, Dr. Welner does not

purport to use any “standardized, systematic checklist[s]” or other specific tools to guide his

analysis. And, while he appears to have identified and ruled out certain “risk factors” for suicide

in developing his opinion on causation, see Gallaudet’s 702 Mot., Ex. B (Welner Report) at 6

(opining that “[n]o other stressors preceded [ ] Manganelli’s suicide”); see also Pls.’ Summ. J.

Opp’n, Ex. R (Welner Dep.) 227:18–19 (“suicide is not a symptom of psychosis”), he does not

explain how he identified those risk factors or whether they are factors typically considered by

professionals who analyze suicide causation.

Perhaps more important, while methods other than a psychological autopsy might also be

appropriate means of assessing causation, see, e.g., In re Neurontin,

, at *12,

*14 (admitting expert testimony regarding suicide causation that was based on the “differential

diagnosis” method, although it was “largely duplicative of [another expert’s] more thorough

psychological autopsy”), Dr. Welner does not identify any specific method that he used to

formulate his opinions in this case. Rather, he simply asserts that he provided a “forensic

psychiatric assessment” based on his “review[] [of] a range of records in connection with the

events preceding [Manganelli’s] death” and an interview with Sacchetti. Gallaudet 702 Mot.,

Ex. B (Welner Report) at 1. However, he does not explain what a forensic psychiatric

assessment typically involves or how exactly it was undertaken in this case. He testified only

that “forensic psychiatry” is a catchall term for “working within legal matters where there’s a

specific context to the clinical question.” Pls.’ Summ. J. Opp’n, Ex. R (Welner Dep.) 17:6–8.

19 And, although Dr. Welner testified that the materials he relied upon are the type of materials that

experts in forensic psychology normally rely upon, see

Ex. R (Welner Dep.) 45:5–8, and that

he only reviewed the “most informative” materials given to him in light of his time and budget

constraints,

Ex. R (Welner Dep.) 47:18–48:14, he does not explain why the materials he

reviewed are sufficient to support his opinions on causation in the context of this particular case.

To the extent that Dr. Welner seeks to rely on his experience alone, the Court cannot

conclude that he has satisfied the prerequisites for doing so. As this Circuit has explained, “a

witness who is ‘relying solely or primarily on experience . . . must explain how that experience

leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and

how that experience is reliably applied to the facts.’” Heller,

(quoting Fed. R.

Evid. 702 Advisory Committee Note). Here, Dr. Welner makes no reference to his experience in

his discussions of his opinions regarding whether the alleged false arrest of Manganelli caused

Manganelli’s suicide. Moreover, he does not explain how his experience or specific knowledge

informed any of his conclusions in this case. For example, he testified during his deposition that

Manganelli “became hopeless[,] [a]nd hopeless has a direct relationship to suicide.” Pls.’ Summ.

J. Opp’n, Ex. R (Welner Dep.) 114:14–15. However, he did not describe his personal experience

evaluating or treating hopeless patients who express suicidal ideations or otherwise explain the

connection between his experience and his conclusion in this or any other case. Nor does he cite

any studies or other authorities supporting the link between hopelessness and suicide. Cf. Heller,

(concluding that the trial judge did not abuse his discretion in admitting

proffered expert testimony because “[i]n addition to invoking his or her generalized ‘experience,’

each expert claimed to have relied upon specific news stories, academic studies, or other research

in forming an opinion[,] [and] each of the three experts was in a position to state whether the

20 cited materials comported with his or her personal experience”). The same can be said for Dr.

Welner’s conclusions purporting to tie the alleged false arrest to shame or other mental suffering

by Manganelli. See Gallaudet’s 702 Mot., Ex. B (Welner Report) at 6 (asserting that “[i]t is

clear from [ ] Manganelli’s communications with others that he was proud and strong-willed,”

and that “the shame of the arrest and removal from Gallaudet . . . was all the more personally

powerful” for Manganelli, because he “realized . . . his entire academic future [was] on the

line”); see also

Ex. B (Welner Report) at 5 (suggesting that Manganelli’s “eviscerati[on of]

himself with a butcher knife” is a Japanese “method [called] seppuku [that] evokes suicide in the

context of dishonor”). 8 Thus, Dr. Welner has not demonstrated that his opinions are reliable

solely on the basis of his experience.

The Court is mindful that psychiatric methods by their nature often “cannot have the

exactness of ‘hard’ science methodologies,” and therefore appreciates that it may “need to reach

beyond the[] four [Daubert] factors” to assess the reliability of such methods. In re Neurontin,

, at *4 (citation omitted). However, as the Supreme Court instructed in

Kumho, the “basic gatekeeping obligation” announced in Daubert applies to all expert testimony,

regardless of whether it is “scientific” in the traditional sense, 526 U.S. at 147–48, and requires

courts “to make certain that an expert, whether basing testimony upon professional studies or

personal experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field,” id. at 152. Here, the Court cannot

say that the plaintiffs have satisfied this standard. As already explained, Dr. Welner does not

8 Although Dr. Welner testified that “given [his] expertise in death investigation, and having had proximity to a number of suicides, [ ] disemboweling is a very unusual method of suicide,” Pls.’ Summ. J. Opp’n, Ex. R (Welner Dep.) 94:25–95:03, he concedes that he is not an expert in Japanese culture or Japanese ritual suicide, see id., Ex. R (Welner Dep.) 94:21–25, and is not prepared to testify to a reasonable degree of certainty that Manganelli committed suicide by seppuku, id., Ex. R (Welner Dep.) 95:11–22.

21 purport to have employed either of the methodologies employed by the suicide causation experts

in the cases cited by the plaintiffs. See Bennett v. Forest Labs., Civ. Action No. 6-72,

, at *5 (M.D. Fla. Apr. 9, 2015) (admitting testimony by an expert who relied on a

psychological autopsy to determine that the drug Lexapro was a significant contributing factor in

a suicide); In re Neurontin,

, at *1, *11, *15 (admitting testimony by experts

who used a psychological autopsy and differential diagnosis as the basis for their conclusions

that the drug Neurontin caused a suicide); Giles,

(admitting testimony

by experts who “used differential diagnoses and a psychological autopsy to determine that [the

drug] Effexor caused [a] suicide”); Cloud v. Pfizer, Inc.,

(D.

Ariz. 2001) (recognizing that “post-mortem [psychological] autopsies appear to be generally

accepted”). 9 Moreover, Dr. Welner’s testimony raised additional questions as to whether his

analysis satisfies the relevant professional standards. Specifically, Dr. Welner testified that due

to budgetary constraints, his report in this case was not peer reviewed, see Pls.’ Summ. J. Opp’n,

Ex. R (Welner Dep.) 38:5–11, even though he normally has his opinions peer reviewed, see

Ex. R (Welner Dep.) 39:21–24, and his “evaluation proceeded in an unusual[] . . . step-wise

fashion,”

Ex. R (Welner Dep.) 38:11–13. Although Dr. Welner’s testimony suggested that a

lack of peer review was not entirely atypical, see

Ex. R (Welner Dep.) 40:2–14 (describing

circumstances in which peer reviews are not conducted), and that the “step-wise” process

ultimately “worked,”

Ex. R (Welner Dep.) 38:12–13, he did not provide any meaningful

9 Although each of these cases involved a claim that a pharmaceutical caused a suicide, and in such cases, unlike this one, the plaintiffs had to establish general causation, i.e., “that exposure to a substance can cause a particular disease,” in addition to specific causation, i.e., that “a given exposure is the cause of an individual’s disease,” In re Neurontin,

, at *2, the courts’ conclusions cited above were reached in the context of assessing the reliability of an expert’s testimony on the issue of specific causation, and thus, are applicable here. Moreover, in relying on these cases to demonstrate that Dr. Welner’s testimony is reliable, see Pls.’ 702 Opp’n at 14–15, the plaintiffs appear to concede that the standards applied in these cases are applicable in this case.

22 explanation as to why these issues did not implicate the reliability of his opinions offered in this

case.

In sum, “[t]he trial court’s gatekeeping function requires more than simply ‘taking the

expert’s word for it.’” Fed. R. Evid. 702 Advisory Committee Note (2000) (quoting Daubert,

, 1319 (9th Cir. 1995)). Here, where Dr. Welner has not identified or explained his

methods or how they were applied in this case, the Court simply cannot conclude that the

requirements of Rule 702 and Daubert have been satisfied. See Patteson v. Maloney,

(D.D.C. 2013) (“Rule 702 and Daubert require [ ] that the method used to

arrive at a scientific conclusion be reliable and reliably applied.” (emphasis added) (citing

Daubert,

)). Thus, although “the rejection of expert testimony is the exception

rather than the rule,” Fed. R. Evid. 702 Advisory Committee Note, the Court concludes that it

must exclude Dr. Welner’s testimony in this case, see Campbell v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2018) (excluding the plaintiff’s proposed expert testimony as

unreliable, in part because the expert “ha[d] not identified any particular principles or

methodology he used in forming his opinions . . . [or] cite a single study, report or other source

for his opinions”); see also Daubert v. Merrell Dow Pharm., Inc.,

, 1319 (9th Cir.

1995) (“We’ve been presented with only the experts’ qualifications, their conclusions, and their

assurances of reliability. Under Daubert, that’s not enough.”); Chesapeake Climate Action

Network v. Exp.-Imp. Bank of the U.S.,

(D.D.C. 2015) (excluding

expert testimony as unreliable, in part because the expert “ha[d] not identified any [ ] principles

or methodology[,] . . . [but] note[d] only that he reviewed certain documents and reached a series

of conclusions”). Accordingly, the Court will grant Gallaudet’s motion to exclude Dr. Welner’s

testimony.

23 2. The Plaintiffs’ Motion to Strike the District’s Exhibits

The plaintiffs, “pursuant to Federal Rule of Civil Procedure 37(c)[,] [ ] move to strike

from the record two undisclosed exhibits” attached to the District’s summary judgment motion

“as a sanction against the District for not disclosing such evidence in discovery as required by

Federal Rule of Civil Procedure 26.” Pls.’ Mot. to Strike at 1. Specifically, the plaintiffs seek to

strike: “(1) a December 4, 2017 declaration from [MPD] [O]fficer [ ] Velez . . . and (2) a hearing

transcript from a proceeding which followed [ ] Manganelli’s arrest . . . and which was,

apparently, first transcribed on April 27, 2017.” Id. at 2. The plaintiffs argue that Officer

Velez’s declaration must be stricken because it “seeks to offer information which [Officer] Velez

had never previously provided[] [in her deposition], [ ] which is not subject to cross examination

by [the p]laintiffs,” and was “never provided [ ] to the [p]laintiffs” before the close of discovery

as required by Rule 26. Pls.’ Mot. to Strike at 3. They further argue that the hearing transcript

must be stricken because it was “previously undisclosed” in violation of Rule 26 and

“impermissible surprise . . . flows from the District’s concealment and use of” it, as “[t]he

[p]laintiffs have no ability, at this stage, to explore the statements or what information may or

may not have been known to any of the declarants at the time of, or which may have precipitated,

the statements.” Pls.’ Strike Reply at 6.

“The decision to grant or deny a motion to strike is vested in the trial judge’s sound

discretion,” Canady v. Erbe Elektromedizin GmbH,

(D.D.C. 2005),

and “[t]he moving party ‘bears a heavy burden as courts generally disfavor motions to strike,’”

Ng v. Lahood,

(D.D.C. 2013) (quoting Canady,

).

However, Rule 37 provides that “[i]f a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 24 justified or harmless.” Fed. R. Civ. P. 37(c)(1). Rule 26(a) provides in relevant part that “a party

must[] . . . provide to the other parties”:

i. the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; [and]

ii. a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Fed. R. Civ. P. 26(a)(1)(A)(i)–(ii). Rule 26(e) provides, in part, that:

A party who has made a disclosure under Rule 26(a)[] . . . must supplement or correct its disclosure . . .

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]

Fed. R. Civ. P. 26(e)(1).

Here, the Court cannot conclude that the District breached its discovery obligations in

regards to either of the two exhibits the plaintiffs seek to have stricken. Regarding Officer

Velez’s declaration, as the District notes, its “Rule 26[](a) initial disclosures to [the p]laintiffs

identified . . . Officer [ ] Velez as a witness,” District’s Strike Opp’n at 1; see also

Ex. 1

(Defendant District of Columbia’s Rule 26 Initial Disclosures (“District’s Initial Disclosures”))

at 3, and described her as a “responding officer[] to the incident that occurred on March 28,

2014[,] that resulted in [Manganelli’s] arrest,”

Ex. 1 (District’s Initial Disclosures) at 3.

These disclosures put the plaintiffs on notice that Officer Velez was likely to have discoverable

information regarding topics related to the arrest, such as the arrest paperwork and arrestee

processing practices discussed in Officer Velez’s declaration. See District’s Summ. J. Mot., Ex.

25 16 (Declaration of Officer Cassandra Velez (Dec. 18, 2017) (“Velez Decl.”)) ¶¶ 4, 8 (offering

information regarding the MPD’s practice of handwriting “notification . . . [of an] arrestee[’s] [ ]

special requirements” on an arrestee’s PD 163 report 10 and the “process that is followed to

present arrests to the U.S. Attorney for prosecution”). Indeed, in their deposition of Officer

Velez, the plaintiffs questioned her regarding the PD 163 report prepared in connection with

Manganelli’s arrest. See, e.g., Pls.’ Summ. J. Opp’n, Ex. F (Deposition of Cassandra Velez

(Mar. 8, 2017) (“Velez Dep.”)) 30:2–4. Thus, the Court cannot conclude that the District’s

initial disclosures regarding Officer Velez violated Rule 26(a), or that Officer Velez’s

declaration establishes that these initial disclosures were “in some material respect . . .

incomplete or incorrect,” such that the District was required to supplement its initial disclosures

under Rule 26(e). Fed. R. Civ. P. 26(e)(1)(A). Rather, Officer Velez’s declaration is consistent

with the requirements of Rule 56(c)(4), which “expressly contemplate[s] declarations in support

of summary judgment regardless of when in the discovery process the motion is filed.” Ng,

.

Moreover, the cases cited by the plaintiffs do not support their position that the District

violated Rule 26. Two of these cases found a violation of Rule 26(a)(1) based on a party’s

failure to disclose the identity of a witness in its initial disclosures or at any point during

discovery. See Thomas v. Paulson,

(D.D.C. 2007) (Walton, J.) (declining

to consider the plaintiff’s affidavit from a witness who she “failed to identify . . . as a relevant

witness during the discovery period in this case”); see also Brooks v. Kerry,

(D.D.C. 2014) (concluding that the plaintiffs’ “disclosure of [a] declaration [wa]s untimely

under Rule 26” because she “never identified [the declarant] as a possible witness in her initial

10 A PD 163 report is an “Arrest/Prosecution Report” created and used by the MPD to document the events surrounding arrests. See District’s Summ. J. Mot., Ex. 6 (Arrest/Prosecution Report) at 1.

26 Rule 26(a) disclosures”). And, another case found that a Rule 26(b) violation had been

committed based on a defendant’s failure to disclose the identity of a witness in response to an

interrogatory propounded by the plaintiff. See Elion v. Jackson,

(D.D.C.

2008). Other cases cited by the plaintiffs found violations of Rule 26(a)(2) based on a party’s

failure to disclose expert testimony in accordance with the specific and more stringent

requirements for expert disclosures set forth in that Rule. See Fed. R. Civ. P. 26(a)(2)(B)

(requiring an expert disclosure to “be accompanied by a written report . . . [that] contain[s],”

inter alia, “a complete statement of all opinions the witness will express and the basis and

reasons for them”); see also Daniels v. District of Columbia,

(D.D.C.

2014) (precluding the proffered witnesses from testifying as experts because “the plaintiff made

no disclosures regarding the [ ] [w]itnesses that are required[] under [Rule 26(a)(2)]”); Blake v.

Securitas Sec. Servs., Inc.,

(D.D.C. 2013) (excluding proffered expert

testimony because the plaintiff’s “belated disclosure [of the expert’s report wa]s not permitted

under Fed. R. Civ. P. 26(a)(2)[]”); Minebea Co. v. Papst,

(D.D.C. 2005)

(excluding the proffered supplemental expert report because it violated Rule 26(a)(2), which

specifically “prevents experts from ‘lying in wait’ to express new opinions at the last minute”). 11

The Court is also not persuaded by the plaintiffs’ argument that Officer Velez’s

deposition testimony “provide[s] further support for the[ir] [ ] motion to strike.” Pls.’ Strike

Reply at 4. To the extent that the plaintiffs seek to invoke the sham affidavit rule—which

“precludes a party from creating an issue of material fact by contradicting prior sworn testimony

11 The plaintiffs also rely on Coles v. Perry,

(D.D.C. 2003), for the proposition that a court must exclude “documents first produced to the plaintiff after the discovery period ended.” Pls.’ Mot. to Strike at 6; see Coles,

(concluding that a defendant violated Rule 26 by seeking to introduce “documents not identified in . . . [its] Initial Disclosure”). However, none of the documents at issue in Coles was a declaration from a timely disclosed witness submitted in support of a motion for summary judgment, see Coles,

(describing the documents at issue), which, for the reasons already explained, is not untimely under Rule 26.

27 unless the ‘shifting party can offer persuasive reasons for believing the supposed correction’ is

more accurate than the prior testimony,” Galvin v. Eli Lilly & Co.,

(D.C.

Cir. 2007) (quoting Pyramid Secs. Ltd. v. IB Resolution, Inc.,

(D.C. Cir.

1991))—Officer Velez’s declaration does not violate that rule. As this Circuit has instructed,

“the important considerations [in applying the rule] are whether the [later-filed] affidavit

contradicts a prior sworn statement without justification or [whether] the filing party breached its

obligations in discovery,”

and as to the former consideration, other members of this Court

have deemed an affidavit contradictory only if it “clearly contradict[s]” prior testimony as

opposed to “clarify[ing] confusing or ambiguous testimony,” St. Paul Mercury Ins. Co. v.

Capitol Sprinkler Inspection, Inc.,

(D.D.C. 2008) (emphasis added);

see Raymond v. Architect of the Capitol,

, 105 n.5 (D.D.C. 2014).

Here, the plaintiffs argue that Officer Velez’s “assertions[] in her [ ] [d]eclaration[] . . .

are belied by her deposition testimony,” Pls.’ Strike Reply at 5, namely, her testimony that she

“did not author the [PD 163 report]” prepared in connection with Manganelli’s arrest, id.; that

she did not know when the word “DEAF” was handwritten at the top of the PD 163 report, see

id. at 4; that “she had no recollection of” many of the events related to Manganelli’s arrest, id. at

5; and that she had not “seen [any documentation] that suggests that [she] provided any

accommodations to [ ] Manganelli in recognition of his being deaf or hard of hearing,” id. at 4.

However, none of this testimony is “clearly contradict[ed]” by Officer Velez’s declaration,

which largely purports to describe the MPD’s typical practices for preparing a PD 163 report and

for processing arrestees, but does not assert that the MPD followed those practices in this

particular case. See District’s Summ. J. Mot., Ex. 16 (Velez Decl.) ¶ 8 (“When the PD 163

[report] is completed, notification is handwritten at the top of the first page[] if the arrestee has

28 special requirements[,] e.g.[,] deaf arrestees would have the word ‘DEAF’ written on the first

page[.]”); see also id., Ex. 16 (Velez Decl.) ¶ 15 (“[A]t papering, the U.S. Attorney’s Office gets

the original PD 163 [report] completed by the arresting officer[.]”). Although Officer Velez’s

declaration does make limited representations about the PD 163 report prepared in connection

with Manganelli’s case, she does not purport to base these representations on any prior

participation in creating this particular report, but instead appears to base them only on her

general knowledge of the MPD’s practices regarding PD 163 reports. See id., Ex. 16 (Velez

Decl.) ¶ 14 (“I can tell that Exh[ibit] 15 is [ ] Manganelli’s original PD 163 [report] because it

has ‘wet’ signatures[] from [Officer] Shifflett and a[n] MPD supervisor.”). Thus, because the

Court “‘cannot find within [Officer Velez’s] deposition testimony any unambiguous assertion

that is directly contradicted by the later [declaration],’ [ ] the Court [ ] ‘must conclude that a

sham would be too expansive a characterization of the testimony and the later [declaration].’”

Johnson v. Shinseki,

, 343–44 (D.D.C. 2011) (second and fifth alterations in

original) (quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch.,

(D.C.

2003)). Thus, the plaintiffs have not established that the District’s reliance on Officer Velez’s

declaration violates Rule 26 or otherwise warrants striking the declaration from the record.

Accordingly, the Court will deny the plaintiffs’ motion to strike as to Officer Velez’s declaration.

As to the hearing transcript, the Court concludes that Rule 26(e) did not require the

District to supplement its initial disclosures with this exhibit because the relevant information in

the exhibit was “otherwise [ ] made known to the [plaintiffs] during the discovery process.” Fed.

R. Civ. P. 26(e)(1)(A).12 As the District notes, the plaintiffs “disclosed . . . to [the d]efendants

12 Because the plaintiffs appear to concede that the hearing transcript was not created until April 27, 2017, see Pls.’ Mot. to Strike at 4 (“The transcript appears to have first been transcribed on April 27, 2017[.]”); see also District’s Summ. J. Mot., Ex. 18 (Hearing Transcript) at 13 (reflecting a transcription date of April 27, 2017), they also (continued . . . )

29 with their initial disclosures” the “court’s release order,” District’s Strike Opp’n at 4, which

reflects that the judge had ordered Manganelli, as a condition of his release, to “[r]eport to [the

Pretrial Services Agency] for [an] evaluation” by the Agency’s Specialized Supervision Unit

(“SSU”). Gallaudet’s Summ. J. Mot., Ex. YY (Release Order Addendum) at Gianni0583; see

District’s Facts ¶ 46 (defining the acronym “SSU”). And, this condition of release is precisely

the information from the transcript that the District seeks to rely upon in support of its summary

judgment motion. See District’s Summ. J. Reply at 24 (“[T]he [ ] judge granted the prosecutor’s

recommendation that Manganelli be ‘screened for SSU[,]’ which provides specialized services to

defendants with mental illness.”). Thus, the plaintiffs’ production of the release order during

discovery demonstrates that the plaintiffs were “on notice” of the information the District now

seeks to introduce. See United States ex rel. Landis v. Tailwind Sports Corp.,

(D.D.C. 2017) (rejecting the defendant’s argument that the plaintiff’s failure to name

certain witnesses in its initial disclosures violated Rule 26(e) because the defendant was

otherwise “on notice that each of the[] witnesses could have potentially relevant and

discoverable information”). Alternatively, the District’s failure to disclose this information was

harmless because the plaintiffs were already aware of it and, therefore, does not warrant a

sanction pursuant to Rule 37. See Robinson v. District of Columbia,

(D.D.C. 2014) (concluding that “it [wa]s difficult to see how [the plaintiff] was harmed by [the

District’s] failure to produce” photographs of a motorcycle “[s]ince the motorcycle itself was in

[the p]laintiff’s possession”). Thus, the District’s nondisclosure of the hearing transcript did not

( . . . continued) necessarily concede that the transcript was not a document that the District “ha[d] in its possession, custody, or control” at the time of its initial disclosures, Fed. R. Civ. 26(a)(1)(A)(ii), which were made on January 17, 2017, see District’s Strike Opp’n, Ex. 1 (District’s Initial Disclosures) at 5. Thus, the District was not required to disclose the transcript as part of its initial disclosures.

30 violate Rule 26(e), or alternatively, does not warrant a sanction under Rule 37. Accordingly, the

Court will also deny the plaintiffs’ motion to strike as to the District’s hearing transcript exhibit.

B. The Defendants’ Summary Judgment Motions

A Rule 56 motion for summary judgment can be granted only if “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). “A fact is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer,

(D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his [or her] favor.” Anderson,

. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for

summary judgment . . . .”

The movant has the burden of demonstrating the absence of a

genuine issue of material fact and that the non-moving party “fail[ed] to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

(1986).

In responding to a motion for summary judgment, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). Accordingly, the non-moving

party “must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson,

. “The mere existence of a scintilla of evidence in support of the [non-moving

party’s] position [is] insufficient” to withstand a motion for summary judgment; rather, “there

31 must be [some] evidence on which the jury could reasonably find for the [non-movant].”

.

1. The Plaintiffs’ False Arrest Claim Against Gallaudet (Sixth Cause of Action)

To establish a claim for false arrest under District of Columbia law, a plaintiff must

show: “(1) detention or restraint against one’s will within boundaries fixed by the defendant, and

(2) the unlawfulness of such restraint.” Harris v. U.S. Dep’t of Veterans Affairs,

,

911–12 (D.C. Cir. 2015). Gallaudet only disputes the second element here. See Gallaudet’s

Summ. J. Mem. at 12 (conceding that Manganelli “was ‘arrested’ within the meaning of the

common-law tort [of false arrest] when he was ‘detained . . . against [his] will’” (alteration in

original) (quoting D.C. Std. Civ. Jury Instr. No. 18-1)). “The detention of a plaintiff by a

defendant police officer is lawful if the officer effected the detention constitutionally—that is,

with probable cause if the detention was an arrest, or upon reasonable suspicion if the detention

amounted only to a Terry stop.” Olaniyi v. District of Columbia,

(D.D.C.

2012) (Walton, J.) (quoting Zhi Chen v. District of Columbia,

(D.D.C.

2011)). “Alternatively, regardless of whether the detention was constitutional, ‘a police officer

may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her

conduct was lawful, and (2) this belief was reasonable.’”

(quoting Weishapl v. Sowers,

, 1020–21 (D.C. 2001)); accord Minch v. District of Columbia,

(D.C. 2008).

Here, viewing the evidence in the light most favorable to the plaintiffs, as the Court must,

the Court finds that a reasonable juror could conclude that when Lieutenant Bauer first placed

Manganelli in handcuffs, he arrested Manganelli, as opposed to merely detaining him pursuant to

an investigative stop. See Pls.’ Facts ¶¶ 110, 113 (stating that after Lieutenant “Bauer emerged

from inside the room with [Manganelli], already in handcuffs, behind his back,” Lieutenant 32 “Bauer told [Manganelli] he was under arrest” (citing Pls.’ Summ. J. Opp’n, Ex. B (Johnson

Dep.) 35:13–15)); see also Pls.’ Summ. J. Opp’n, Ex. B (Johnson Dep.) 35:13–15 (testifying that

the “DPS [officer] said[,] I’m arresting you for your and my safety”);

Ex. A (Bauer Dep.)

38:3–5 (referring to “the moment [he] placed handcuffs on [Manganelli] and . . . placed [him]

under arrest” (emphasis added)). 13 Indeed, Gallaudet appears to concede this point for purposes

of its summary judgment motion. See, e.g., Gallaudet’s Summ. J. Mem. at 1 (arguing that

“Gallaudet’s officers lawfully arrested [Manganelli] for the stated criminal offenses” (emphasis

added)); see also id. at 12 (arguing that “the material facts underlying the arrest are not in

dispute” (emphasis added)). Thus, in order to demonstrate that it is entitled to summary

judgment on the plaintiffs’ false arrest claim, Gallaudet must identify lawful grounds for the

arrest.

“An arrest made pursuant to legal authority, such as a warrant properly issued and

facially valid and fair, provides no basis for an action for false arrest.” Enders v. District of

Columbia,

(D.C. 2010) (internal quotation marks omitted). However, “[w]hen

the plaintiff in a false arrest case shows that he was arrested without a warrant, a rebuttable

presumption arises that the arrest was unlawful, and the burden shifts to the [defendant] . . . .”

Karriem v. District of Columbia,

(D.C. 1998). Then, the central issue

becomes “whether the arresting officer was justified in ordering the arrest of the plaintiff . . . .”

Scott v. District of Columbia,

(D.C. 1985) (quoting Dellums v. Powell,

(D.C. Cir. 1977)). On this issue, a defendant may satisfy its burden by

13 D.C. Code, Chapter 5, addressing warrants and arrests, defines a “law enforcement officer” as “an officer or member of the Metropolitan Police Department of the District of Columbia, or of any other police force operating in the District of Columbia,” D.C. Code § 23–501(2) (2012), which includes Gallaudet’s DPS officers, see Dep’t of Public Safety, Gallaudet Univ., https://www.gallaudet.edu/academic-catalog/services-and-activities/campus- services/department-of-public-safety (last visited Oct. 10, 2018) (“Gallaudet’s public safety officers are considered ‘special police officers’ and are commissioned by the District of Columbia.”).

33 demonstrating “either that probable cause existed to arrest or that the arresting officer believed,

reasonably and in good faith, that probable cause existed.” Minch,

. Under

District of Columbia law, probable cause sufficient “to effect a warrantless arrest[] . . . means

either probable cause to believe a felony has been committed or probable cause to believe a

misdemeanor has been committed in a manner specified in [D.C. Code] § 23–581.” Enders,

. D.C. Code § 23–581(a)(1) provides, in relevant part:

A law enforcement officer may arrest, without a warrant . . . —

(A) a person who he has probable cause to believe has committed or is committing a felony;

(B) a person who he has probable cause to believe has committed or is committing an offense in his presence; [or]

(C) a person who he has probable cause to believe has committed or is about to commit any offense listed in paragraph (2) and, unless immediately arrested, may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence.

D.C. Code § 23–581(a)(1) (2012). Additionally, § 23–581 provides that “[a] law enforcement

officer may arrest a person without a[] [ ] warrant if the officer has probable cause to believe the

person has committed an intrafamily offense as provided in section 16–1031(a).” Id. § 23–

581(a-1).

Gallaudet argues that “[l]egal justification existed for Gallaudet’s officers to detain [ ]

Manganelli,” Gallaudet’s Summ. J. Mem. at 9, because (1) “constitutionally-sufficient probable

cause existed to detain and involuntarily commit [Manganelli],” Gallaudet’s Summ. J. Reply at

10; (2) “the only information available to Lieutenant Bauer at the time of the arrest was that

multiple people were in danger in the dorm[itory] room where he found [Manganelli]

unresponsive and uncooperative,” Gallaudet’s Summ. J. Mem. at 17; (3) “D.C. Code § 16–

1031(a) not only justified, but actually required, [Manganelli]’s detention,” id. at 14; and

34 (4) Manganelli “provided additional grounds for his detention” by “resisting arrest,” id. at 17–18.

The Court will address each purported justification in turn.

i. Justification To Detain Manganelli for Involuntary Psychiatric Treatment Under D.C. Code § 21–521

Gallaudet argues that “[b]y conceding that constitutionally-sufficient probable cause

existed to detain and involuntarily commit [Manganelli]” for psychiatric evaluation pursuant to

D.C. Code § 21–521, “[the p]laintiffs necessarily concede that it was reasonable for Gallaudet’s

officers to believe that their decision to restrict [Manganelli]’s movement against his will was

lawful.” Gallaudet’s Summ. J. Reply at 10; see Gallaudet’s Summ. J. Mem. at 12 (arguing that

the “[p]laintiffs’ admission that Gallaudet’s DPS officers had cause to detain [Manganelli] for

involuntary psychiatric treatment is fatal to their false arrest claim”). The plaintiffs respond that

“probable cause for an arrest on criminal charges is not[] . . . the equivalent of [probable cause

for] a detention for the purpose of mental health intervention under D.C. Code § 21–521.” Pls.’

Summ. J. Opp’n at 41. The Court agrees with the plaintiffs.

As already explained, the facts viewed in the light most favorable to the plaintiffs

establish that Lieutenant Bauer arrested Manganelli, and it is undisputed that he did not have a

warrant authorizing him to do so. Thus, in order to demonstrate that the arrest was lawful,

Gallaudet must show that “either probable cause [existed] to believe a felony . . . [or] a

misdemeanor ha[d] been committed in a manner specified in [D.C. Code] § 23–581,” Enders,

, or that “the arresting officer believed, reasonably and in good faith, that [such]

probable cause existed,” Minch,

. D.C. Code § 21–521 is not a criminal offense

and is not identified in § 23–581 as a lawful basis for a warrantless arrest. Notably, § 21–521

does not purport to authorize an officer to make an arrest, nor does it require an officer to have

probable cause to believe that any criminal offense has been committed, let alone one that is

35 recognized by § 23–581. Rather, it requires an officer to determine only that “a person is

mentally ill and, because of the illness, is likely to injure himself or others if he is not

immediately detained,” and, upon making that determination, authorizes the officer to “take the

person into custody, transport him to a public or private hospital, or to the Department [of Mental

Health of the District of Columbia], and make application for his admission thereto for purposes

of emergency observation and diagnosis.” D.C. Code § 21–521. Thus, the statute does not

purport to authorize arresting a person and taking him to jail.

Gallaudet’s argument that “constitutional probable cause to justify [a] detention” under

§ 21–521 necessarily justified its officers’ warrantless arrest of Manganelli, Gallaudet’s Summ.

J. Reply at 9, conflicts with controlling precedent from the D.C. Court of Appeals, which has

explicitly rejected “an equation between the constitutional probable cause standard and the

defense of privilege in a false arrest suit.” Enders,

. In Enders, the court found

erroneous the trial judge’s jury instruction that if the arresting “officer had probable cause to

arrest the plaintiff [for any crime,] . . . the officer was legally justified in making the arrest,”

, explaining that it “is only true [that probable cause will defeat a claim of false arrest] to

the extent that ‘probable cause’ is synonymous with legal justification to effect the particular

arrest in question,”

. It further clarified that “an action for false arrest will lie if the

arrest was made in contravention of the local law, despite the presence of probable cause,”

, and, under District of Columbia law, “[l]egal justification to effect a warrantless arrest[]”

based on the existence of probable cause is limited to “either probable cause to believe a felony

has been committed or probable cause to believe a misdemeanor has been committed in a

manner specified in § 23–581,” id. at 467. Applying these principles here, even if Gallaudet had

constitutional probable cause to detain Manganelli for psychiatric evaluation under § 21–521,

36 that does not establish that it had “probable cause to believe a felony . . . [or] a misdemeanor

ha[d] been committed in a manner specified in § 23–581.” Id. And, for the reasons explained

below, Gallaudet has not otherwise demonstrated that Manganelli’s arrest was legally justified

under § 23–581.

ii. D.C. Code § 16–1031(a)

Gallaudet argues that “D.C. Code § 16–1031(a) not only justified, but actually required,

[Manganelli]’s detention.” Gallaudet’s Summ. J. Mem. at 14. Section 16–1031(a) criminalizes

“intrafamily offense[s]” that either “resulted in physical injury,” D.C. Code § 16–1031(a)(1), or

“caused or w[ere] intended to cause reasonable fear of imminent serious physical injury or

death,” id. § 16–1031(a)(2). An “intrafamily offense” includes “interpersonal[] . . . violence,” id.

§ 16–1001(8), which includes “act[s] punishable as a criminal offense that [are] committed or

threatened to be committed by an offender upon a person[] [ ] [w]ith whom the offender shares

or has shared a mutual residence,” id. § 16–1001(6)(A).

The Court cannot find that a reasonable jury would be compelled to conclude that

Lieutenant Bauer or Captain Rader reasonably believed that probable cause existed to arrest

Manganelli for committing a criminal offense under § 16–1031(a). Probable cause, and thus, a

reasonable belief in probable cause, turns on “the facts and circumstances within th[e arresting

officers’] knowledge” “at the moment the arrest was made.” Beck v. Ohio,

(1964). Gallaudet concedes that “the only information available to Lieutenant Bauer at the time

of [Manganelli’s] arrest was that multiple people were in danger in the dorm[itory] room where

he found [Manganelli] unresponsive and uncooperative.” Gallaudet’s Summ. J. Mem. at 17.

Critically, it also concedes that Lieutenant Bauer “did not know [Manganelli] or that it was his

dorm[itory] room.” Gallaudet’s Summ. J. Mem. at 16; see also Gallaudet’s Facts ¶ 100; Pls.’

Summ. J. Opp’n, Ex. A (Bauer Dep.) 22:4–7 (stating that the “message from the dispatcher . . . 37 didn’t say who, just said there were ten people in a room”). Given the absence of evidence

available to Lieutenant Bauer at the time the arrest was made to support the existence of any

“intrafamily” aspect of an offense under § 16–1031(a), namely that an offense had been

committed “upon a person[] [ ] [w]ith whom [Manganelli] share[d] . . . a mutual residence,” D.C.

Code § 16–1001(6)(A), the Court cannot conclude as a matter of law that Lieutenant Bauer

reasonably believed there existed probable cause to arrest Manganelli for such an offense, see

Enders, 4 A.3d at 469–71 (in a case involving a plaintiff’s challenge to his arrest for the offense

of malicious destruction of property of $200 or more, finding that the court “simply cannot

conclude that there was undisputed evidence requiring a conclusion, as a matter of law, that the

officers had a reasonable, good faith belief in the lawfulness of the arrest” given “the paucity of

evidence as to the damage to [the property] that was visible at the scene”); see also District of

Columbia v. Murphy,

(D.C. 1993) (in a case involving a plaintiff’s challenge to

his arrest for the offense of unlawful entry, where “the record d[id] not exclude the possibility

that the police seized the [plaintiff] without knowing whether [he had been] asked [ ] to leave,”

which is an element of the offense, the court concluded that it could not “say as a matter of law

that the police officers had . . . a reasonable good faith belief that they were acting lawfully in”

making the arrest).

Although Gallaudet appears to rely, in part, on Opie’s testimony regarding his

interactions with Manganelli earlier in the day as justification for Lieutenant Bauer’s arrest, see

Gallaudet’s Summ. J. Mem. at 15, the existence of probable cause, and therefore a reasonable

belief in the existence of probable cause, depends on the “facts and circumstances within the[]

[officers’] knowledge” “at the moment the arrest was made,” Beck,

(emphasis

added). However, as already discussed, Gallaudet concedes that, at the time of the arrest,

38 Lieutenant Bauer did not have any information about Opie and Manganelli’s interactions earlier

that day. See Gallaudet’s Summ. J. Mem. at 17 (“[T]he only information available to Lieutenant

Bauer at the time of the arrest was that multiple people were in danger in the dorm[itory] room

where he found [Manganelli] unresponsive and uncooperative.”). And, the record establishes

that those with knowledge of Opie and Manganelli’s interactions—Opie, Scherrenberg, and

Morgan—did not arrive on the scene until some period of time after Lieutenant Bauer’s initial

arrest of Manganelli, see Gallaudet’s Facts ¶ 119 (“[Lieutenant] Bauer and [ ] Morgan both

testified that [ ] Morgan arrived on [the] scene after the DPS officers.”); see also Gallaudet’s

Facts ¶ 120 (“Following [Captain Rader’s re-handcuffing of Manganelli], [ ] Opie returned to the

dorm[itory] [ ] with [ ] Scherrenberg”). Thus, Gallaudet has failed to establish that, as a matter

of law, Lieutenant Bauer had a good faith, reasonable belief that probable cause existed to arrest

Manganelli for an intrafamily offense under D.C. Code § 16–1031(a).

iii. Safety Concerns

Gallaudet also asserts that Lieutenant Bauer’s arrest of Manganelli was “legally justified”

because, given “the [ ] information . . . [he had received] that multiple people were in danger in

the dorm[itory] room where he found [Manganelli] unresponsive and uncooperative,”

“Lieutenant Bauer believed that he needed to detain [Manganelli to] . . . ensure the safety of the

people who may have been inside,” Gallaudet’s Summ. J. Mem. at 17, as well as his own safety

and Manganelli’s safety, see id. at 16 (referring to Lieutenant Bauer’s testimony that he

“informed [Manganelli] that he would need to place him in handcuffs for both of their safety”).

However, Gallaudet does not cite any authority to support its claim that Lieutenant Bauer’s

concerns legally justified his arrest of Manganelli. As already explained, to demonstrate that its

arrest of Manganelli was lawful, Gallaudet must demonstrate either that Lieutenant Bauer had

“probable cause . . . or believed, reasonably and in good faith, that probable cause existed” as 39 provided under D.C. Code § 23–581. See Minch,

. Lieutenant Bauer’s safety

concerns could potentially justify his use of handcuffs to detain a suspect during an investigative

stop, see Hargraves v. District of Columbia,

(D.D.C. 2015) (concluding

that an officer’s “decision to place handcuffs on the plaintiff for safety reasons” constituted a

“reasonable use . . . of force during [an] investigative stop[]”), but Gallaudet does not take the

position that Lieutenant Bauer detained Manganelli during an investigative stop, see, e.g.,

Gallaudet’s Summ. J. Mem. at 17 (arguing that Lieutenant Bauer’s “actions to secure

[Manganelli] were legally justified” in light of the “information available to Lieutenant Bauer at

the time of the arrest” (emphasis added)), and in any event, as already explained, the facts

viewed in the light most favorable to the plaintiffs establish that Lieutenant Bauer did not simply

detain Manganelli, but arrested him. Even assuming that Lieutenant Bauer’s testimony that

Manganelli “did not respond to [his] instructions” is undisputed as Gallaudet claims, Gallaudet’s

Summ. J. Mem. at 16, Gallaudet does not assert that Lieutenant Bauer believed that Manganelli’s

non-responsiveness constituted a criminal offense, such that Lieutenant Bauer believed “he ha[d]

probable cause to believe . . . [Manganelli wa]s committing an offense in his presence,” D.C.

Code § 23–581(a)(1)(B). Nor does Gallaudet assert that Lieutenant Bauer believed he had

probable cause to arrest Manganelli for an offense arising from the information “that several

people were in danger in a Gallaudet dorm[itory] room because there was a man in the room

hurting people.” Gallaudet’s Summ. J. Mem. at 16. As already explained, Gallaudet has failed

to establish that Lieutenant Bauer had reason to believe at the time of the arrest that Manganelli

had committed an intrafamily offense under D.C. Code § 16–1031(a). And, to the extent that

Gallaudet claims that Lieutenant Bauer’s arrest was justified by his belief that Manganelli had

committed a “simple assault” within the meaning of D.C. Code § 22–404, a statute that Gallaudet

40 does not explicitly invoke in its filings, it never asserts that the information Lieutenant Bauer

received from his dispatcher was the basis for believing that such an assault had occurred.

Rather, it asserts only that any “simple assault ar[ose] from [Manganelli’s] threats and attempted

violence against his roommate,” Gallaudet’s Summ. J. Reply at 17, which, as already explained,

is information that was not available to Lieutenant Bauer at the time of the arrest. Thus,

Gallaudet has failed to establish that Lieutenant Bauer’s safety concerns demonstrate as a matter

of law that his arrest of Manganelli was lawful.

iv. Resisting Arrest Under D.C. Code § 22–405.01

Finally, Gallaudet argues that even if Manganelli’s arrest was not legally justified on the

grounds already discussed, it was alternatively justified by Captain Rader’s good faith,

reasonable belief that probable cause existed to arrest Manganelli for resisting arrest in violation

of D.C. Code § 22–405.01(b). See Gallaudet’s Summ. J. Mem. at 17–18 & n.3 (“Captain Rader

testified that he considered [Manganelli]’s actions to constitute resisting arrest and [Manganelli]

could have been arrested on that charge.”). As the plaintiffs note, see Pls.’ Summ. J. Opp’n at

29, Manganelli was not ultimately charged with resisting arrest, see District’s Facts ¶ 27

(asserting that the District charged Manganelli with “simple assault domestic violence and

threats to do bodily harm”). However, as Gallaudet notes, “when an officer lacks probable cause

‘to arrest a plaintiff on the announced charge, but where probable cause existed to believe that

[t]he [plaintiff] committed a different offense proffered by the defense after the fact,’ the officer

‘can avoid liability if the consequences for the plaintiff probably would have been substantially

as unfavorable if he had been arrested’ on the latter charge.” Gallaudet’s Summ. J. Reply at 17

(quoting Etheredge v. District of Columbia,

, 920–21 (D.C. 1993)); see Enders,

(explaining that a defendant alleged to have committed a false arrest “can prevail if

it can show that probable cause existed to arrest for any offense [recognized under D.C. Code 41 § 23–581], even if it differs from the offense for which the arrest was actually made, provided

that the consequences for the plaintiff probably would have been substantially as unfavorable”

(citing Etheredge, 635 A.2d at 920–21). 14

D.C. Code § 22–405.01 makes it unlawful to, “without justifiable and excusable cause[,]

intentionally resist[] an arrest by an individual who he or she has reason to believe is a law

enforcement officer.” D.C. Code § 22–405.01(b). The parties vigorously dispute whether

Captain Rader reasonably believed that Manganelli’s movements constituted resistance. See

Pls.’ Summ. J. Opp’n at 29–30 (arguing that “Johnson[] . . . testified [ ] that [Manganelli] was

not resisting, but was attempting to communicate via sign language when the officers removed

one handcuff”); Gallaudet’s Summ. J. Reply at 18 (arguing that Johnson “cannot comment on

whether [Manganelli] was resisting arrest” because “[s]he was not in physical contact with

[Manganelli]”). However, the Court need not address whether there exists a genuine factual

dispute based on this issue, because the facts in the record create a genuine factual dispute as to

whether the officers reasonably believed that another element of § 22–405.01 had been satisfied;

namely, whether an arrest was taking place when Manganelli allegedly resisted. 15

Here, the facts in the record, including the facts asserted by Gallaudet itself, create a

genuine factual issue regarding whether the DPS officers were arresting or continuing an arrest

14 Gallaudet asserts that “Capt[ain] Rader testified that at th[e] time [of the arrest], it was his intention that [Manganelli] be criminally arrested for resisting arrest.” Gallaudet’s Facts ¶ 115. To the extent that Gallaudet seeks to argue that resisting arrest was in fact the charge “announced” by Gallaudet, and thus, that Gallaudet need not rely on Etheredge, evidence in the record belies this claim. See, e.g., Gallaudet’s Summ. J. Mot., Ex. LL (DPS Report #14-0267) at GU_00001 (classifying the incident involving Manganelli on March 29, 2014, as “Assault Simple/Threat Menace Manner”). In any event, Gallaudet has explicitly invoked Etheredge. See Gallaudet’s Summ. J. Reply at 22. 15 Although the District asserts that Manganelli’s alleged resistance constituted an “assault[] [of] a law enforcement officer” in violation of D.C. Code § 22–405(b), see District’s Summ. J. Mem. at 17 (citing D.C. Code § 22–405(b)), which makes it unlawful to “assault[] a law enforcement officer . . . engaged in the performance of his or her official duties,” D.C. Code § 22–405(b), Gallaudet has not invoked this statute. Thus, the Court need not consider whether it would have provided a lawful basis for Gallaudet’s arrest of Manganelli.

42 of Manganelli when he allegedly resisted. Although, as already explained, evidence in the

record suggests that Lieutenant Bauer arrested Manganelli when he first placed him in handcuffs

prior to Captain Rader’s arrival, see Pls.’ Summ. J. Opp’n, Ex. B (Johnson Dep.) 35:13–15

(testifying that the “DPS [officer] said[,] I’m arresting you for your and my safety”), Lieutenant

Bauer’s testimony, albeit inconsistent on the issue, suggests that he merely detained Manganelli

pursuant to an investigative stop, see id., Ex. A (Bauer Dep.) 50:11–14 (testifying that

Manganelli “was[] [not] under arrest[, but] was just being detained while [the officers] [ ]

investigate[d]”); see also id., Ex. A (Bauer Dep.) 49:15–17, 22–23 (explaining that he reported to

Manganelli’s dormitory room “to investigate . . . if a crime happened or not,” and that he “had to

detain [Manganelli] for his safety to move him out of the room”). But see id., Ex. A (Bauer

Dep.) 38:3–5 (referring to “the moment [he] placed handcuffs on [Manganelli] and . . . placed

[him] under arrest” (emphasis added)); id., Ex. A (Bauer Dep.) 46:18 (referring to “[w]hen [he]

arrested [Manganelli]” (emphasis added)). A juror who credits Lieutenant Bauer’s testimony

that he merely detained Manganelli could reasonably believe that Lieutenant Bauer did not arrest

Manganelli prior to Captain Rader’s arrival. Moreover, a reasonable juror who credits Captain

Rader’s testimony that Manganelli was only “being detained,” id., Ex. D (Rader Dep.) 42:18–20;

see Gallaudet’s Facts ¶ 113 (asserting that after Captain Rader uncuffed one of Manganelli’s

hands, “he tried to explain to [Manganelli that] he was not under arrest, just being detained”

(emphasis added)), could also conclude that Captain Rader did not arrest Manganelli either. And

because there appears to be no evidence in the record to suggest that Captain Rader believed that

Lieutenant Bauer had arrested Manganelli, see Pls.’ Summ. J. Opp’n, Ex. D (Rader Dep.) 35:7–9

(testifying that Lieutenant Bauer only “told [him] what happened, what [Manganelli] did, and

why [Manganelli] was put in handcuffs”); see also id., Ex. D (Rader Dep.) 35:11–15 (testifying

43 that Lieutenant Bauer “said that [Manganelli] was uncooperative[] . . . and was resisting,” and

“for safety purposes, [Lieutenant Bauer] . . . put him in handcuffs”); id., Ex. A (Bauer Dep.)

48:12–18 (testifying that the only thing he told Captain Rader when he arrived was to “check”

Manganelli’s room and “make sure no one[] [was] hurt”), that juror could further conclude that

Captain Rader did not believe he was continuing an arrest by Lieutenant Bauer. 16 Thus, because

a reasonable juror could find that the DPS officers were not arresting or continuing an arrest of

Manganelli when he allegedly resisted them, or reasonably and in good faith believed that they

were arresting him, that juror could reasonably conclude that the officers did not have a

reasonable, good faith belief that probable cause existed to arrest Manganelli for resisting an

arrest in violation of D.C. Code § 22–405.01(b). See Wesby v. District of Columbia,

(D.C. Cir. 2014) (“[T]he police cannot establish probable cause without at least some

evidence supporting the elements of a particular offense[.]”), reversed on other grounds by

(2018).

In sum, the Court cannot conclude that a reasonable juror must find that probable cause

existed or that Gallaudet’s DPS officers had a good faith, reasonable belief that probable cause

existed to arrest Manganelli for any of the reasons proffered by Gallaudet and discussed above.

Accordingly, the Court must deny Gallaudet’s motion for summary judgment on the plaintiffs’

false arrest claim against Gallaudet.

16 Although Lieutenant Bauer testified that Manganelli “was resisting” when Lieutenant Bauer first put handcuffs on him, see Pls.’ Summ. J. Opp’n, Ex. A (Bauer Dep.) 46:20, Gallaudet does not assert that this resistance formed a basis for the offense of resisting arrest, see Gallaudet’s Summ. J. Mem. at 17 (arguing that Manganelli “provided additional grounds for his detention after . . . Captain [ ] Rader[] arrived” (emphasis added)).

44 2. The Plaintiffs’ False Arrest Claim Against the District (Seventh Cause of Action)

The District asserts that it is entitled to summary judgment on the plaintiffs’ false arrest

claim against it because the “MPD arresting officers had probable cause to arrest Manganelli for

assault on Opie based on information they received from Opie, Scherrenberg, and [the] DPS

officers,” District’s Summ. J. Mem. at 13, and “also . . . for assault on a special police officer

[as] reported by [the] DPS officers,” id. at 17. The plaintiffs respond “that the record evidence

plainly establishes, by Officer Velez’s own testimony, that she could not possibly have

developed probable cause before [Manganelli’s] arrest,” Pls.’ Summ. J. Opp’n at 34, because

Manganelli “was already under arrest at 1:10:51 a.m., when the District dispatched its jail

transport van to pick up [Manganelli] and take him to the Fifth District jail,” id. (citing Pls.’

Facts ¶ 153), or, alternatively, the “MPD [o]fficers arrested [Manganelli], at the very latest, by

1:32 a.m., when he departed Gallaudet in the back of an MPD transport van bound for the Fifth

District [j]ail,” id.; see also Pls.’ Facts ¶ 171, which occurred before Officer Velez “interviewed

Opie and Scherrenberg at Gallaudet DPS headquarters,” Pls.’ Summ. J. Opp’n at 35 (citing Pls.’

Facts ¶¶ 170, 176).

As already explained, “[a]n arrest is supported by probable cause if, at the time of the

arrest, ‘the facts and circumstances within [the officers’] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense.’” McGovern v. George Wash. Univ.,

(D.D.C. 2017) (emphasis added) (quoting Beck,

). Here,

the plaintiffs have created a genuine factual issue regarding the timing of the MPD officers’

arrest of Manganelli. Specifically, they have presented evidence from which a reasonable juror

could conclude that the arrest occurred “within [forty-nine] seconds of [Officers] Velez and

45 Lehigh’s arrival on scene,” Pls.’ Facts ¶ 153; namely, that Officers Velez and Lehigh “arrive[d]

on [the] scene” at 1:10:02 a.m., id. ¶ 140; see District’s Facts ¶ 12, “[O]fficer [ ] Armstrong

(Wagon 51) [wa]s dispatched to pick up [Manganelli]” at 1:10:51 a.m., Pls.’ Facts ¶ 153; see

District’s Facts ¶ 12, and that Officer Armstrong testified “that the only reason he would have

been dispatched to a location, during that shift on March 29, 2014, would have been to pick up a

subject who had already been arrested,” Pls.’ Facts ¶ 149 (citing Pls.’ Summ. J. Opp’n, Ex. H

(Deposition of John Armstrong (Apr. 28, 2017) (“Armstrong Dep.”)) 25:14–26:3 (“Q[:] . . . If

your role was limited to transporting from Gallaudet to the jail, would that have been the only

purpose that you were sent to Gallaudet for? A[:] Yes, sir. Q[:] To pick up an arrestee to bring

back to the jail? A[:] Yes, sir.”).

The District’s reply entirely ignores the plaintiffs’ evidence supporting the view that the

MPD officers arrested Manganelli at some point before or at the time when Officer Armstrong

was dispatched to Gallaudet. And, the District does not dispute the time when the MPD officers

arrived on the scene or the time when the MPD transport vehicle was dispatched. See District’s

Facts ¶ 12. Nor has it presented any facts to dispute Officer Armstrong’s testimony that an MPD

transport vehicle would only be dispatched to a scene if a suspect had already been arrested, such

as it being the District’s policy to dispatch a transport vehicle regardless of whether an arrest has

been made or that, in this particular case, the MPD transport vehicle was dispatched for some

other reason prior to Manganelli’s arrest. Indeed, Officer Velez’s testimony is consistent with

Officer Armstrong’s testimony that a transport vehicle would not be dispatched until a suspect

had actually been arrested, as she testified that arrestees are typically transported in a vehicle like

the one dispatched to Gallaudet on the night of the alleged false arrest, see Pls.’ Summ. J. Opp’n,

Ex. F (Velez Dep.) 53:11–19, and that the appropriate time to request a transport vehicle is

46 “[w]hen we establish that we need it, which would follow establishing probable cause,” id., Ex. F

(Velez Dep.) 182:3–7.

Additionally, the apparent absence of the indicators of an arrest typically relied upon by

courts further supports the existence of a genuine factual issue as to the timing of the arrest. For

example, the District has not identified any evidence that the MPD officers stated to Manganelli

or others that Manganelli was or was not under arrest. Cf. Alderete v. City of Albuquerque, Civ.

Action No. 17-500 JAP/LF,

, at *9 (D.N.M. Dec. 8, 2017) (not “consider[ing]

[the plaintiff] to have been arrested when [the arresting o]fficer [ ] handcuffed [him]” where the

“[o]fficer [ ] told [the plaintiff] several times [before he was handcuffed] that he was not yet

being arrested and was merely being detained while the police officers continued to

investigate”). Nor is there evidence that the MPD officers handcuffed Manganelli or used force

against him. Cf. Morris v. Noe,

(10th Cir. 2012) (in considering “whether

[a] seizure should be characterized as a Terry stop or a full arrest,” concluding that the officer’s

“actions in throwing down [the plaintiff] constituted an arrest” because “an unreasonable level of

force transforms a Terry detention into an arrest requiring probable cause”); Cortez v. McCauley,

, 1115–16 (10th Cir. 2007) (“‘[T]he use of firearms, handcuffs, and other forceful

techniques’ generally exceed the scope of an investigative detention and enter the realm of an

arrest.” (alteration in original)). Testimony from witnesses at the scene suggests that Manganelli

was already handcuffed when the MPD officers arrived, see Pls.’ Facts ¶ 159 (citing Opie’s

deposition testimony that, when he arrived at the scene, Manganelli “was already in custody and

[ ] face down [on the floor] in handcuffs”), and neither Officer Velez nor Officer Lehigh recalls

putting handcuffs on Manganelli or whether he was already handcuffed when they arrived, see

47 Pls.’ Summ. J. Opp’n, Ex. F (Velez Dep.) 61:8–12;

Ex. J (Deposition of Christopher Lehigh

(Mar. 8, 2017)) 22:16–21.

Critically, the factual dispute surrounding the time of arrest is material because the

existence of probable cause, and therefore a reasonable belief in the existence of probable cause,

depends on the “facts and circumstances within the[] [officers’] knowledge” “at the moment the

arrest was made,” Beck,

; cf. Acosta v. Ames Dep’t Stores, Inc.,

(1st

Cir. 2004) (instructing that regarding probable cause, “the material facts[] [include] what the

police knew at the moment of the arrest”). And here, if a juror determined that Manganelli had

already been arrested when Officer Armstrong was dispatched to the scene, see Pls.’ Facts ¶ 153,

that juror could reasonably conclude that the information known to the MPD officers at that time

was not sufficient to form the basis for probable cause, or a reasonable, good faith belief that

there was probable cause. Although the District asserts that “MPD arrested Manganelli” “[a]fter

Opie and [Captain] Rader told the MPD [o]fficers about [ ] Manganelli’s assault of Opie and his

actions resisting DPS officers,” District’s Facts ¶ 22, the only evidence that it cites for this

proposition is Officer Armstrong’s testimony that he “transported someone to [the Fifth

District],” Pls.’ Summ. J. Opp’n, Ex. H (Armstrong Dep.) 33:16–17, and the Fifth District arrest

log, which reflects that Manganelli arrived at the station at 1:41 a.m., see

Ex. 26 (Fifth

District Prisoner’s Arrest Book), neither of which establishes when the MPD officers received

the relevant information from Opie and Captain Rader. Even if a reasonable juror found that the

MPD officers acquired this information at some point before Manganelli was transported to the

Fifth District, it would nonetheless be reasonable for a juror to infer that the officers were not

able to obtain the information in the approximate forty-nine seconds that elapsed between when

they arrived on the scene and when the MPD transport vehicle was dispatched to the scene. See

48 Pls.’ Facts ¶ 153. Moreover, the District does not argue that the information conveyed to the

MPD officers by the dispatcher—that there was a simple assault in progress, see Pls.’ Summ. J.

Opp’n, Ex. F (Velez Dep.) 117:20–22—was sufficient to establish probable cause or a

reasonable good faith belief that probable cause existed to arrest Manganelli. See Enders, 4 A.3d

at 470–71 (“[T]he relevant inquiry in a false arrest defense is . . . what the officers could

reasonably conclude from what they were told and what they saw on the scene.” (emphasis

added)). Thus, the plaintiffs have demonstrated that a genuine dispute of material fact exists as

to the timing of the arrest, which precludes the Court from determining as a matter of law

whether the District’s arrest of Manganelli was lawful. Accordingly, the Court must deny the

District’s motion for summary judgment on the plaintiffs’ false arrest claim against the District.

3. Causation

i. Damages Under the District of Columbia’s Wrongful Death Act

The defendants argue that the plaintiffs cannot recover damages for Manganelli’s suicide

under the District of Columbia’s Wrongful Death Act 17 because the “[p]laintiffs’ evidence fails

to meet the ‘irresistible impulse’ standard,” Gallaudet’s Summ. J. Mem. at 22; see District’s

Summ. J. Mem. at 32 (“[T]he undisputed facts do not show that Manganelli’s arrest created the

legally required ‘irresistible [suicidal] impulse.’” (second alteration in original) (citation

omitted)), which requires a plaintiff to “adduce testimony that would support a jury finding that

[the] decedent could not have decided against and refrained from killing himself,” Gallaudet’s

Summ. J. Mem. at 22 (quoting District of Columbia v. Peters,

(D.C.

17 The Wrongful Death Act provides: “When[] . . . the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, . . . damages shall be assessed with reference to the injury resulting from the act, neglect, or default causing the death, to the spouse or domestic partner and the next of kin of the deceased person.” D.C. Code. § 16–2701(a)–(b). Such damages “shall include the reasonable expenses of last illness and burial,” id. § 16–2701(b), as well as other “economic . . . and non-economic damages,” Burton v. United States,

(D.D.C. 2009).

49 1987)). Specifically, Gallaudet argues that “[t]he only evidence proffered in this case to connect

[Manganelli’s] arrest to his suicide is the [inadmissible] expert report and testimony of [the

p]laintiff[s’] expert psychiatrist[, Dr.] Welner,” id. at 26, which it argues is not admissible for the

reasons explained in its motion to exclude that testimony, see id. at 26–27. The District

additionally argues that in light of Manganelli’s “long history of mental illness[,] . . . it is

impossible to say that the District’s treatment of Manganelli le[]d to an ‘irresistible [suicidal]

impulse.’” District’s Summ. J. Mem. at 32 (third alteration in original) (citations omitted). The

plaintiffs respond that “[t]here is sufficient record evidence from which a jury could find that

[the p]laintiffs meet the ‘irresistible impulse’ test.” Pls.’ Summ. J. Opp’n at 50. Alternatively,

they argue that “the ‘irresistible impulse’ test[, which] applies to negligence claims,” “does not

apply . . . in this case because [the p]laintiffs’ false arrest claim is an intentional tort.” Id. at 56.

Rather, they argue that “liability can be imposed based on a showing that the defendant’s

conduct was a substantial factor cause of the decedent’s suicide,” id. at 57, and “the record

evidence, including most notably, Dr. Welner’s testimony, shows [that Manganelli]’s false arrest

was a substantial factor cause of his hopelessness and suicide,” id. at 59.

The Court concludes that it need not decide which of the legal tests cited by the parties

should apply in this case because the plaintiffs have failed to identify sufficient evidence to

satisfy either test. As Gallaudet notes, see Gallaudet’s Summ. J. Mem. at 26, the plaintiffs rely

exclusively on Dr. Welner’s testimony to establish a causal link between the alleged false arrest

and Manganelli’s suicide, see Pls.’ Summ. J. Opp’n at 51 (“The most obvious and direct

evidence [of Manganelli’s ‘irresistible impulse’] is the deposition testimony of [the p]laintiffs’

expert forensic psychiatrist, Dr. [ ] Welner[.]”); see also id. at 51–56 (citing only Dr. Welner’s

testimony as support for the plaintiffs’ conclusion that they “have adduced sufficient evidence to

50 permit a jury to find that [the d]efendants’ conduct was a substantial factor cause of the

hopelessness, which, in turn, triggered an irresistible impulse in [Manganelli] to take his own

life”); id. at 59 (citing only Dr. Welner’s testimony to support the plaintiffs’ assertion that “the

record evidence . . . shows [that Manganelli’s] false arrest was a substantial factor cause of his

hopelessness and suicide”). Although the plaintiffs, in their opposition, alleged the existence of

other evidence that they contend supports causation, see id. at 51 (asserting that “the record

contains ample evidence to permit a jury to find [that] the [irresistible impulse] test has been

met”), they fail to specifically identify what evidence other than Dr. Welner’s testimony they are

referencing. Notably, the plaintiffs’ argument that the substantial factor test has been satisfied

here relies on their ability to demonstrate that the arrest caused Manganelli to be hopeless, see,

e.g., id., which they have only sought to establish through Dr. Welner’s testimony. Moreover,

although it is undisputed that Manganelli’s suicide occurred within approximately thirty hours of

the alleged false arrest, see Gallaudet’s Facts ¶¶ 157, 164; Pls.’ Reply to Gallaudet’s Facts

¶¶ 157, 164, “a mere temporal coincidence between two events does not necessarily entail a

substantial causal relation between them,” Lasley v. Georgetown Univ.,

(D.C. 1997). Thus, the plaintiffs have “fail[ed] to make a showing sufficient to establish” that

the alleged false arrest caused Manganelli to experience an irresistible impulse to commit suicide

or was a substantial factor that contributed to Manganelli’s suicide. Celotex Corp.,

. Accordingly, the Court must grant summary judgment to both defendants on the plaintiffs’

claims for damages under the Wrongful Death Act.

ii. Damages Under the District of Columbia’s Survival Act

Gallaudet also argues that the “[p]laintiffs’ evidence fails to establish compensable

damages for false arrest as part of a survival claim” under the District of Columbia’s Survival

Act. Gallaudet’s Summ. J. Mem. at 28. Specifically, it argues that Manganelli “was 51 unemployed[] and [ ] did not incur costs in securing his release[,] [t]here is no indication that

[he] sustained any physical injuries as a result of the arrest[, and] there is no evidence with

respect to what, if any, suffering or shame [Manganelli] might have experienced due to the

arrest.”

The plaintiffs respond that “conscious pain and suffering may be inferred from” the

“frightful manner of [Manganelli’s] death,” Pls.’ Summ. J. Opp’n at 62–63, and that they are also

entitled to damages for “the obvious intense feeling of shame [Manganelli] endured as a result of

being dragged from his dorm[itory] room in handcuffs, slammed to the floor[,] and hauled off to

jail as his classmates looked on,” id. at 62.18

The Survival Act provides that, “[o]n the death of a person in whose favor . . . a right of

action has accrued for any cause prior to his death, the right of action, for all such causes,

survives in favor of . . . the legal representative of the deceased.” D.C. Code § 12–101. Thus,

“[u]nder the Survival Act, recovery by the decedent’s estate is comprised of that which the

deceased would have been able to recover had he lived.” Burton v. United States,

(D.D.C. 2009). Here, the parties agree that, “once liability is established for an

intentional tort such as false arrest, a plaintiff may recover nominal damages, at least, as well as

compensation for ‘mental suffering, including fright, shame, and mortification from the indignity

and disgrace . . . [of] an illegal detention.’” Barnes v. District of Columbia,

(D.C. 1982) (emphasis removed) (quoting Neisner Brothers, Inc. v. Ramos,

(D.C. 1974)).

18 Both Gallaudet and the plaintiffs rely in part on Dr. Welner’s testimony to support their respective positions. See Gallaudet’s Summ. J. Mem. at 29 (arguing that Manganelli’s alleged lack of expression during the arrest is irrelevant because Dr. Welner “testified at length about [Manganelli’s] pre-existing declining psychiatric condition” and associated Manganelli’s lack of expression with that condition); Pls.’ Summ. J. Opp’n at 62 (arguing that “Dr. Welner provided ample evidence to reach the jury on th[e] issue” of shame). However, because the Court has concluded that Dr. Welner’s testimony is not admissible, it will not consider that evidence in determining whether Gallaudet is entitled to summary judgment on the issue of damages for mental suffering.

52 For the reasons already explained with respect to the plaintiffs’ claims for damages under

the Wrongful Death Act, the Court must conclude that the plaintiffs cannot recover damages

under the Survival Act for any physical or mental suffering that Manganelli may have

experienced due to his suicide. As Gallaudet points out, the plaintiffs’ claim for such damages

“presupposes a link between the suicide and [the] arrest,” Gallaudet’s Summ. J. Reply at 25, and

the Court has already concluded that the plaintiffs have failed to identify admissible evidence to

support a causal link between Manganelli’s alleged false arrest and his suicide.

Nonetheless, the Court cannot agree with Gallaudet that there exists no evidence which

demonstrates that the plaintiffs may recover any other damages under the Survival Act for

Manganelli’s alleged false arrest. First, as Gallaudet acknowledges, see Gallaudet’s Summ. J.

Mem. at 28, the District of Columbia Court of Appeals has held that “[g]iven the very nature of

the tort [of false arrest], . . . it is . . . appropriate for a jury in a false arrest case to consider loss of

liberty per se as a basis for [an] award of compensatory damages,” Phillips v. District of

Columbia,

(D.C. 1983). Second, contrary to Gallaudet’s position that there

exists “no evidence with respect to what, if any, suffering or shame [Manganelli] might have

experienced due to the arrest,” Gallaudet’s Summ. J. Mem. at 28, testimony regarding the

circumstances of Manganelli’s arrest and Manganelli’s behavior at the time of and after the arrest

clearly could support a reasonable inference that Manganelli experienced “mental suffering,

including fright, shame, and mortification,” Barnes,

. As the plaintiffs note, see

Pls.’ Summ. J. Opp’n at 62, the record evidence demonstrates that Lieutenant Bauer removed

Manganelli from his dormitory room after midnight and placed him in handcuffs, see Gallaudet’s

Facts ¶¶ 73, 106. Then, Lieutenant Bauer and Captain Rader “took [Manganelli] to the ground

and re-cuffed” him in the hallway outside of his dormitory room with Johnson present, see

53 ¶ 114, at which point Morgan, Opie, and Scherrenberg arrived at the scene, see

¶¶ 119–20;

Pls.’ Reply to Gallaudet’s Facts ¶¶ 119–20, and observed Manganelli lying “face down [on the

floor] in handcuffs,” Pls.’ Facts ¶ 159. Moreover, the evidence demonstrates that Manganelli

remained in this position for some period of time, see Pls.’ Summ. J. Opp’n, Ex. K (Opie Dep.)

54:13 (testifying that at some point, Manganelli was put “[o]n his knees”), and that during that

time, because Manganelli’s hands were handcuffed behind his back, see, e.g.,

Ex. K (Opie

Dep.) 54:2–3, his ability to communicate was restricted, see

Ex. D (Rader Dep.) 40:14–17

(“Q[:] You agree that communication was limited to a certain extent because his hands were

handcuffed behind his back? A[:] Yes.”). And, persons present at the scene testified that

Manganelli appeared to have various emotional reactions to these events. See

Ex. B

(Johnson Dep.) 67:12, 15–16 (testifying that Manganelli “dropped one tear” “just after

[Morgan] . . . arrived”); see also

Ex. B (Johnson Dep.) 35:17–21 (testifying that Manganelli

“was very, very, very mad” after Lieutenant Bauer arrested him and “had him up against the

wall”);

Ex. D (Rader Dep.) 38:25 (testifying that Manganelli was “not happy” at the time that

Captain Rader arrived). The Court concludes that this evidence is clearly sufficient to establish

that a reasonable juror could conclude that Manganelli experienced mental suffering due to the

alleged false arrest.

Gallaudet’s counterarguments are misplaced. Gallaudet argues that the plaintiffs cannot

establish any mental suffering resulting from the alleged false arrest because “[t]he record is

notably absent of any indication that [Manganelli] ever mentioned the arrest to anyone from the

time he was release[d] until his suicide,” Gallaudet’s Summ. J. Mem. at 28–29, and that

“[a]lthough . . . Johns[on] testified that she recalled seeing [Manganelli] express a single tear

while he was detained in the hallway, . . . [e]very other witness who saw [Manganelli] in the

54 hallway before his departure from campus recalled that he was expressionless,” id. at 29.

However, these arguments ask the Court to weigh and draw inferences from the record evidence,

which is not the Court’s function on summary judgment. See Anderson,

(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge[] . . . [when] ruling on a motion

for summary judgment[.]”). And, in any event, “all justifiable inferences [must] be drawn in [the

plaintiffs’] favor.”

In the Court’s view, a reasonable juror could conclude that the lack of

evidence that Manganelli told anyone about his arrest, while it might indicate otherwise, can also

support the inference that Manganelli felt ashamed by the event. Thus, although the Court

concludes that the plaintiffs may not recover damages for physical and mental suffering due to

Manganelli’s suicide under the Survival Act, the plaintiffs have identified sufficient evidence to

demonstrate that they may be entitled to recover other damages due to the alleged false arrest.

Accordingly, the Court will grant in part and deny in part Gallaudet’s motion for summary

judgment as to the plaintiffs’ claims for damages under the Survival Act.

4. The Plaintiffs’ ADA Claims Against the District (Fifth Cause of Action)

As explained in the Court’s prior opinion in this case,

[t]o state a claim under Title II [of the ADA,] a plaintiff must allege: (1) that he is a qualified individual with a disability; (2) who was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of his disability.

Sacchetti,

(quoting Lee v. Corr. Corp. of Am.,

, 142–

43 (D.D.C. 2014)). And,

[i]n the context of arrests, courts have recognized two types of Title II claims: (1) wrongful arrest, where police arrest a suspect based on his disability, not for any criminal activity; and (2) reasonable accommodation, where police properly arrest a suspect but fail to reasonably accommodate his disability during the

55 investigation or arrest, causing him to suffer greater injury or indignity than other arrestees.

Id. at 127 (first quoting Waller ex rel. Estate of Hunt v. City of Danville,

(4th

Cir. 2009); then citing Gohier v. Enright,

(10th Cir. 1999); then citing J.V.

v. Albuquerque Pub. Schs.,

(10th Cir. 2016); and then citing Lewis v.

Truitt,

(S.D. Ind. 1997)). Here, the plaintiffs bring both types of claims

against the District. The District does not dispute that Manganelli was a “qualified individual

with a disability” under the ADA or that it is a “public entity,” see District’s Summ. J. Mem. at

20–26; however, the District disputes the remaining elements of the plaintiffs’ ADA claims and

argues that it is entitled to summary judgment on those claims. The Court will address each

claim in turn.

i. The Plaintiffs’ Wrongful Arrest Theory of Liability Under the ADA

To establish a claim for wrongful arrest under the ADA, the plaintiffs must show that the

MPD officers “arrested [Manganelli] because of legal conduct related to his disability.” Lewis,

; see Gohier,

(describing a wrongful arrest under the ADA

as a situation where “police wrongly arrest[] someone with a disability because they

misperceive[] that disability as criminal activity”). The District argues that it is entitled to

summary judgment on the plaintiffs’ wrongful arrest claim, in part “[b]ecause MPD’s decision to

arrest was based on information they received from the complainant and others rather than any

direct observation of Manganelli’s conduct, [and thus,] MPD’s arrest could not have been based

on a misperception of the effects of Manganelli’s deafness as criminal activity.” District’s

Summ. J. Reply at 20. The plaintiffs respond that Manganelli’s “alleged assault on a special

police officer [ ]—was, in fact, conduct symptomatic of his disability [], as . . . [Manganelli] was

56 merely trying to communicate with the officers using sign language.” Pls.’ Summ. J. Opp’n at

45 (internal citations and quotation marks omitted).

The Court concludes that the plaintiffs have not identified evidence that would support a

wrongful arrest claim under the ADA. Specifically, the plaintiffs have not demonstrated that the

District’s officers arrested Manganelli “because of lawful conduct related to his [deafness].”

Lewis,

. The MPD officers testified that they arrested Manganelli for simple

assault allegedly perpetrated against Opie, see, e.g., Pls.’ Summ. J. Opp’n, Ex. F (Velez Dep.)

116:7–21, and Manganelli was ultimately “charged [ ] with simple assault domestic violence and

threats to do bodily harm,” District’s Facts ¶ 27; see also Pls.’ Reply to District’s Facts ¶ 28.19

Thus, the plaintiffs have failed to establish that the District arrested Manganelli for any lawful

conduct related to his deafness, and the plaintiffs have not raised any other theory that supports a

wrongful arrest ADA claim. 20 Accordingly, the Court must grant summary judgment to the

District on the plaintiffs’ wrongful arrest ADA claim.

ii. The Plaintiffs’ Failure to Provide Reasonable Accommodations Theory of Liability Under the ADA

1. Manganelli’s Deafness

The plaintiffs contend that the District failed to reasonably accommodate Manganelli’s

deafness by not “allowing him the use of [his] hands to communicate [or] obtaining[] an

independent [American Sign Language (‘ASL’)] interpreter” for him, Compl. ¶ 252, and by

19 The District has only invoked the conduct underlying the alleged assault on the DPS police officers on the theory that the MPD officers could have relied on this conduct as a basis for their arrest, not that they did in fact rely on that conduct. See District’s Summ. J. Mem. at 17. Indeed, the plaintiffs argue that “there is no evidence that [Officer] Velez had any information about any ‘assault on a special police officer’ at the time she says she arrested [Manganelli].” Pls.’ Summ. J. Opp’n at 31. 20 Although the plaintiffs also argue that “the evidence demonstrates a lack of . . . legal justification for [Manganelli]’s arrest,” Pls.’ Summ. J. Opp’n at 45, they do not argue that the absence of legal justification alone would be sufficient to demonstrate that the MPD officers wrongfully arrested Manganelli in violation of the ADA.

57 “fail[ing] to adequately document or communicate . . . [to] the Pre-Trial Services Agency

[(‘Pretrial Services’)] . . . that [Manganelli] was deaf and in need of an interpreter,” which they

allege caused Manganelli to “not receive any kind of pre-[presentment] screening[,] . . .

includ[ing] screening aimed at early identification of mental health issues,” id. ¶ 142. The

District argues that “[b]ecause the undisputed facts show that Manganelli could and did

communicate with the DPS and MPD officers, and there is no evidence that he ever requested an

ASL interpreter or any other type of assistance in communicating with MPD [officers], [the

p]laintiffs cannot proceed to trial on their claim that the arresting officers’ communications with

Manganelli during and after his arrest violated his rights under the ADA.” District’s Summ. J.

Mem. at 25–26. The plaintiffs respond that “the District ignores clear law that a specific request

for accommodation is not required when the need is obvious,” Pls.’ Summ. J. Opp’n at 49, “and

that questions of material fact remain as to whether the District provided [Manganelli] with

reasonable accommodations” for his deafness, id. at 50.

As already explained, to establish disability discrimination under Title II, a plaintiff must

demonstrate that he “was either excluded from participation in or denied the benefits of a public

entity’s services, programs, or activities, or was otherwise discriminated against by the public

entity.” Lee,

, 142–43. Relevant here, “‘[d]iscrimination’ under [Title II]

includes ‘not making reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability . . . .’” Waller,

(quoting

(b)(5)(A)); see Updike, 870 F.3d at 951 (“The ‘failure to provide reasonable

accommodation can constitute discrimination.’” (quoting Vinson v. Thomas,

(9th Cir. 2002)). For example, “[a] public entity [must] make reasonable modifications in

policies, practices, or procedures when the modifications are necessary to avoid discrimination

58 on the basis of disability.”

(b)(7)(i). 21 And, “[a] public entity [must also]

take appropriate steps to ensure that communications with . . . members of the public with

disabilities are as effective as communications with others,”

§ 35.160(a), including

“furnish[ing] appropriate auxiliary aids and services where necessary to afford an individual with

a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program,

or activity conducted by a public entity,” id. § 35.160(b)(1).

First, the Court agrees with the plaintiffs that any failure by Manganelli to request an

interpreter or any other accommodation for his deafness is irrelevant. As another member of this

Court has explained, although

there are times in which courts have held that a disabled person must request accommodation[,] . . . it is [ ] clear that the legal significance of the request requirement is merely to put [an] entity on notice that the person is disabled; it does not serve as a means of shifting the burden of initiating the accommodations process to the disabled individual. . . . [W]here[ ] . . . the inmate’s disability is obvious and indisputably known to the provider of services, no request is necessary.

Pierce v. District of Columbia,

(D.D.C 2015) (internal citation omitted)

(collecting cases). Here, the District does not dispute that the MPD officers were aware of

Manganelli’s inability to communicate verbally due to his deafness, see District’s Summ. J.

Mem. at 20–31, and, in any event, his disability appears to have been obvious, see Robertson v.

Las Animas Cty. Sheriff’s Dep’t,

, 1197–98 (10th Cir. 2007) (“[A] public entity is

on notice that an individual needs an accommodation when it knows that an individual requires

one, either because that need is obvious or because the individual requests an accommodation.”);

see also Pierce,

(concluding that a deaf “inmate’s disability [wa]s

21 Although a public entity need not provide such modifications if “the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity,”

(b)(7)(i), the Court need not address this exception to the rule, as the District has not argued that this exception applies to the accommodations the plaintiffs contend should have been provided to Manganelli.

59 obvious”). Thus, no request for accommodation was required to inform the officers of

Manganelli’s disability. Moreover, given that Manganelli had a “communications-related

disability,” the Court finds the District’s position to be “baffling as a matter of law and logic,” as

it would render “the protections of . . . Title II . . . unavailable to [similarly] disabled persons

unless they somehow manage to overcome their communications-related disability sufficiently

enough to convey their need for accommodations.” Pierce, 128 F. Supp. 3d at 269–70. Thus,

the Court cannot conclude that the District had no duty to reasonably accommodate Manganelli’s

deafness because Manganelli did not request an accommodation.

Next, the Court is also unpersuaded by the District’s argument that it did not need to

provide the accommodations requested by the plaintiffs because it is undisputed that “Manganelli

could and did communicate in ASL with the DPS officers who initially detained and handcuffed

him,” and that, at “the Fifth District station, MPD Officer Shifflett . . . communicated with [him]

using handwritten notes.” District’s Summ. J. Mem. at 25. This position fails for two reasons.

First, “[i]t is well-settled that Title II . . . create[s] a duty to gather sufficient information from the

[disabled individual] and qualified experts as needed to determine what accommodations are

necessary.” Updike v. Multnomah Cty.,

(9th Cir. 2017) (third alteration in

original) (internal quotation marks omitted); see Pierce,

(holding that

under Title II, the District had “an affirmative duty to assess the potential accommodation needs

of inmates with known disabilities who are taken into custody”). Here, there is no evidence that

the MPD officers or the District made any attempt whatsoever to determine what, if any,

accommodations Manganelli needed. Notably, the District has identified no evidence that

anyone consulted Manganelli himself on this issue. Rather, the MPD officers appear to have

simply presumed that the presence of the DPS officers on the scene and the ability to

60 communicate with Manganelli with handwritten notes at the police station were sufficient.

However, such presumptions do not satisfy the ADA. See Pierce,

(rejecting the position that “Title II permit[s] reliance on guesswork and happenstance with

respect to the provision of accommodations, [because] the law clearly requires otherwise”).

Consequently, the lack of any evidence to show that the District satisfied its obligations to

investigate what, if any, accommodations Manganelli required, precludes summary judgment on

the plaintiffs’ claim that the District failed to reasonably accommodate Manganelli’s deafness.

See Updike,

(reversing a district court’s grant of summary judgment to the

defendant county on a deaf pretrial detainee’s Title II claim because the defendant county

“fail[ed] . . . [to] conduct[] an adequate investigation of [the plaintiff]’s disability and the

efficacy of other ways to communicate”); see also Pierce,

(granting

summary judgment to a deaf inmate on his Title II claim, in part because the District failed “to

assess the potential accommodations needs of” the inmate).

Moreover, the District’s claim that Manganelli “could and did communicate in ASL with

the DPS officers,” District’s Summ. J. Mem. at 25, does not establish that no accommodations

were necessary to satisfy the ADA. To satisfy the ADA, an accommodation must place

Manganelli “on equal footing with other [hearing] arrestees” and enable him to “achieve

effective communication.” Bircoll v. Miami-Dade Cty.,

(11th Cir. 2007);

see

(a); Pierce,

(“[A] public entity discriminates in

violation of Title II if qualified individuals with disabilities are given an ‘opportunity to

participate in or benefit from the aid, benefit, or service that is not equal to that afforded

others.’”). Here, there is evidence in the record that supports the plaintiffs’ position that

Manganelli was unable to effectively communicate with the DPS officers. The evidence

61 suggests that from the time that the MPD officers arrived on the scene until Manganelli was

transported to MPD, Manganelli’s hands were handcuffed behind his back, and, for some of that

time, he was lying face down on the floor. See, e.g., Pls.’ Facts ¶ 159. Although there exists

evidence in the record which demonstrates that Manganelli was able to communicate to some

extent with the DPS officers prior to that point, the evidence also demonstrates that because his

hands were handcuffed behind his back, his ability to communicate was limited, so much so that

Captain Rader testified that he believed he “needed to be able to communicate better with

[Manganelli].” Pls.’ Summ. J. Opp’n, Ex. D (Rader Dep.) 39:17–18, 40:10–13 (testifying that

Manganelli “was [ ] signing very small because his hands were constrained,” and that he and

Lieutenant Bauer “needed to be able to communicate better with [Manganelli]”); see

Ex. D

(Rader Dep.) 40:14–17 (“Q[:] You agree that communication was limited to a certain extent

because his hands were handcuffed behind his back? A[:] Yes.”). Based on these facts, a

reasonable juror could conclude that the presence of the DPS officers did not permit Manganelli

to communicate to the degree that the District had no obligation to provide Manganelli any

accommodations.

For these reasons, the Court concludes the District is not entitled to summary judgment

on the plaintiffs’ ADA claim that the District failed to reasonably accommodate Manganelli’s

deafness, with one exception. That exception is the plaintiffs’ claim that the District violated the

ADA by “fail[ing] to adequately document or communicate . . . [to Pretrial] Services . . . that

[Manganelli] was deaf and in need of an interpreter.” Compl. ¶ 142. As already explained, Title

II requires “[a] public entity [to] make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis of

disability.”

(b)(7)(i) (emphasis added). The plaintiffs appear to argue that

62 informing Pretrial Services of Manganelli’s deafness was necessary to permit Manganelli access

to a service provided by Pretrial Services, namely, a pre-presentment screening. See Compl.

¶ 142 (alleging that the District’s failure to inform Pretrial Services caused Manganelli to “not

receive any kind of pre-[presentment] screening”). Although an accommodation is “necessary”

when it is required to provide “increased access to a public service,” Pollack v. Reg’l Sch. Unit

75,

(1st Cir. 2018); see

(b)(1) (requiring “[a] public entity [to]

furnish appropriate auxiliary aids and services where necessary to afford individuals with

disabilities[] . . . an equal opportunity to participate in, and enjoy the benefits of, a service

program, or activity of a public entity”); Henrietta D. v. Bloomberg,

(2d Cir.

2003) (“A ‘reasonable accommodation’ is one that gives the otherwise qualified plaintiff with

disabilities ‘meaningful access to the program or services sought.’” (quoting Alexander v.

Choate,

(1985))), a pre-presentment screening by Pretrial Services does not

appear to qualify as a “public service” contemplated by Title II. As the District notes, “Pretrial

Services . . . is a federal agency,” District’s Facts ¶ 36 (citing D.C. Code § 24–133(a) (2012));

see Pls.’ Reply to District’s Facts ¶ 37 (admitting that Pretrial Services is federal agency), and as

such, is not a “public entity” subject to Title II, see

(1)(A)–(B) (defining

“public entity,” in relevant part, as “any State or local government” or “any department, agency,

special purpose district, or other instrumentality of a State or States or local government”). The

plaintiffs have made no attempt to explain how Title II, which only covers public entities as that

term is defined in the statute, can require a public entity to provide an accommodation—

informing Pretrial Services of Manganelli’s deafness—on the theory that the accommodation is

necessary to ensure access to a service provided by a non-public entity, or why it would

otherwise require the District to inform Pretrial Services of Manganelli’s deafness. See Pls.’

63 Summ. J. Opp’n at 46–50 (not addressing their claim that the District violated the ADA by

failing to inform Pretrial Services of Manganelli’s disability). In other words, the plaintiffs have

failed to explain how the District can be held liable under Title II for failing to inform Pretrial

Services of Manganelli’s need for accommodations in order for Pretrial Services to provide

Manganelli with services it provides to arrestees who do not have a disability. Thus, the

plaintiffs have failed to demonstrate that informing Pretrial Services of Manganelli’s disability

was a “necessary” accommodation required by Title II. 22 Accordingly, the Court must grant

summary judgment to the District as to this aspect of the plaintiffs’ reasonable accommodations

claim under Title II of the ADA.

2. Mental Illness

The plaintiffs assert that the District also failed to reasonably accommodate Manganelli’s

mental illness by not “contacting mental health care providers[] [or] transporting him to a

medical or mental health facility.” Compl. ¶ 247. The District argues that the “[p]laintiffs’

22 Although the Court concludes that Title II did not require the District to inform Pretrial Services of Manganelli’s disability, at least not on the theory advanced by the plaintiffs in this case, it is nonetheless troubled by the potential impact of the District’s failure to communicate such information to Pretrial Services, i.e., the denial of a service provided by Pretrial Services to persons with disabilities. However, this concern cannot provide a basis for imposing a duty Title II itself does not impose. In any event, the Court notes that even if it could conclude that the plaintiffs’ claim is cognizable under Title II and should survive summary judgment, the plaintiffs would likely have an impossible task demonstrating at trial that the denial of a pre-presentment screening caused Manganelli harm. The plaintiffs suggest that a pre-presentment screening was critical because it “traditionally includes screening aimed at early identification of mental health issues to be reported to the [j]udge handling the first appearance,” Compl. ¶ 142; however, the plaintiffs do not argue that the judge presiding over Manganelli’s presentment would have taken different actions had the judge received such a report, and in any event, the evidence in the record demonstrates that the judge was aware that such mental health issues may have existed, see Gallaudet’s Summ. J. Mot., Ex. YY (Release Order Addendum) at Gianni0583 (reflecting that the judge ordered Manganelli, as a condition of his release, to “[r]eport to [Pretrial Services] for [an] evaluation” by the agency’s SSU). Moreover, evidence in the record suggests that even if Manganelli had been identified by Pretrial Services as someone requiring mental health services, such services would not have been available to him on March 29, 2014, the day he was in federal custody, see Pls.’ Summ. J. Opp’n, Ex. W (Deposition of Sheena Baynes-Bagley (Apr. 28, 2017)) 12:20–13:9 (testifying that Pretrial Services’ liaison from the Department of Behavioral Health is not available on Saturdays); see also Pls.’ Reply to District’s Facts ¶ 40 (admitting that “March 29, 2014[,] was a Saturday”). Thus, it appears that merely identifying Manganelli as in need of mental health intervention would not have permitted him access to mental health services prior to his appearance in court.

64 suggestion that MPD should have contacted mental health care providers is not reasonable”

because

[p]olice officers are not medical doctors[] and there is no evidence that the officers had any information about how to identify and contact appropriate mental health care providers for Manganelli, how many they should . . . contact, how long [the] officers should have waited for a mental health provider . . . , or what the officers should have permitted [mental health care providers] to do when and if they arrived.

District’s Summ. J. Mem. at 23. Additionally, the District argues that the “[p]laintiffs’

suggestion that the ADA required MPD to transport Manganelli to a mental health facility is

unreasonable” because “MPD . . . [was] responding to a volatile situation,” and, in any event,

Title II only requires “public entities [to] provide disabled individuals with equal access to . . .

[their] ‘services, programs, or activities’” and does not “impose[] . . . affirmative obligation[s] on

public entities to provide emergency mental health care to mentally ill individuals.”

at 24

(quoting

). The plaintiffs respond that discrimination under Title II

“include[s] not making reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability,” Pls.’ Summ. J. Opp’n at 46 (internal

quotation marks omitted), and the District cannot “justify its inaction” by quoting cases

involving “responding officers [who] face[d] . . . grave risks” because “[i]t is undisputed that, at

the time the [MPD] officers arrived on scene . . . , [Manganelli] was already in handcuffs, face

down with his hands behind his back . . . with two DPS officers standing over him,” id. at 46.

They further argue that “MPD Officer Velez’s deposition testimony directly contradicts” the

District’s argument that its officers lacked information about how to identify and contact mental

health providers for Manganelli. Id. at 47.

First, the Court must reject the District’s argument that Title II could never require a

public entity to provide or facilitate “mental health care for mentally ill individuals” if the entity

itself does not otherwise provide such services. See District’s Summ. J. Mem. at 24 (arguing that 65 “[s]o long as a public entity does not deny an individual with a disability access to the benefits of

the services, programs, and activities that they otherwise provide, it complies with Title II”). As

the plaintiffs aptly note, see Pls.’ Summ. J. Opp’n at 46, a plaintiff may establish disability

discrimination under Title II by demonstrating that he “was either excluded from participation in

or denied the benefits of a public entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity,” Lee, 61 F. Supp. 3d at 142–43 (emphasis added); see

also Bircoll,

(“[T]he final clause of § 12132 ‘protects qualified individuals with

a disability from being subjected to discrimination by any such entity, and is not tied directly to

the services, programs, or activities of the public entity.’” (quoting Bledsoe v. Palm Beach Cty.

Soil & Water Conservation Dist.,

, 821–22 (11th Cir. 1998)). And,

“‘[d]iscrimination’ under [Title II] includes ‘not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a disability . . . .”

Waller,

(quoting

(b)(5)(A)); see Updike,

(“The ‘failure to provide reasonable accommodation can constitute discrimination.’” (quoting

Vinson v. Thomas,

(9th Cir. 2002)). As already explained, public entities

have an affirmative obligation to “make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis of

disability.”

(b)(7)(i). Indeed, at least one court has suggested, albeit in dicta,

that there are circumstances in which Title II would require a law enforcement officer to

“reasonably accommodate [a mentally ill individual’s] disability [by] handling and transporting

him to a mental health facility.” Hainze v. Richards,

, 802 & n.34 (5th Cir. 2000)

(citing

(b)).

66 However, “[a] critical component of a Title II claim for failure to accommodate[] . . . is

proof that [a] disability and its consequential limitations were known by the [entity providing

public services.]” Windham v. Harris Cty.,

(5th Cir. 2017) (internal quotation

marks and citation omitted); see Waller,

(“‘Discrimination’ under [Title II]

includes ‘not making reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability . . . .” (emphasis added)). Although the

District does not argue that Manganelli’s mental illness was unknown to it, see District’s Summ.

J. Mem. at 20–31; District’s Summ. J. Reply at 21–25, the plaintiffs have not identified, nor is

the Court able to locate, any evidence in the record demonstrating that the District knew of

Manganelli’s mental illness, see Pls.’ Summ. J. Opp’n at 45 (asserting, without identifying any

evidence, that “[i]t is undisputed that . . . the District[] had actual knowledge of [Manganelli’s]

disabilities at all material times”). And, although the plaintiffs argue that Manganelli’s “mental

illness w[as] obvious,” Pls.’ Summ. J. Opp’n at 50, they have not identified any specific facts to

support this claim either, see Crandall v. Paralyzed Veterans of Am.,

(D.C.

Cir. 1998) (observing that, to satisfy the knowledge element of a disability discrimination claim,

a plaintiff must demonstrate that a disabled person’s “behavior [wa]s so obviously [a]

manifestation[] of an underlying disability that it would be reasonable to infer that [the

defendant] actually knew of the disability”). Given that the District’s knowledge is a

prerequisite to the viability of the plaintiffs’ claim, the Court finds it appropriate to request

further briefing from the parties on this issue. Thus, the Court will hold in abeyance the

District’s motion for summary judgment on the plaintiffs’ claim that the District failed to

reasonably accommodate Manganelli’s mental illness pending further briefing by the parties.

3. Compensatory Damages

Finally, the District argues that the plaintiffs cannot recover compensatory damages 67 under Title II because “[t]here is no evidence that the District was deliberately indifferent to

Manganelli[’s] need for accommodation[s] based on his deafness or his mental illness, or that it

intentionally discriminated against him.” District’s Summ. J. Mem. at 29. Because the Court

has not yet determined the viability of the plaintiffs’ claim that the District violated the ADA by

failing to reasonably accommodate Manganelli’s mental illness, it need not address whether

compensatory damages would be available for that claim at this time. However, the Court finds

it appropriate to consider the availability of compensatory damages for the plaintiffs’ claim that

the District failed to reasonably accommodate Manganelli’s deafness, having already concluded

that that claim survives summary judgment.

In order to “recover compensatory damages for violations of Title II[,] . . . [a plaintiff

must show] that the defendant’s discriminatory actions were intentional,” Pierce,

, and while “the majority of circuits” have held that this standard requires a plaintiff to

“establish[] that the defendant acted with ‘deliberate indifference’ to the plaintiff’s rights,”

(collecting cases), the District has failed to demonstrate that the plaintiffs cannot satisfy this

standard as to their claim that the District failed to reasonably accommodate Manganelli’s

deafness. As another member of this Court has explained,

[d]eliberate indifference is “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” The “knowledge” element is satisfied where the public entity has notice of the plaintiff's accommodation need, and the “failure to act” element is satisfied by conduct that is “more than negligent, and involves an element of deliberateness.”

(internal citation omitted) (quoting Duvall v. Cty. of Kitsap,

, 1139 (9th Cir.

2001)). The District does not dispute that the first element has been satisfied here, and its

position that the plaintiffs cannot establish the second element lacks merit. As the Court has

already explained, the evidence adequately suggests that the District failed to make any attempt

to assess Manganelli’s accommodation needs with respect to his deafness, and, as the court in 68 Pierce recognized, such a failure “easily satisfies” the deliberate indifference standard.

(concluding that “the District’s knowing failure to evaluate [a deaf inmate’s]

need for accommodation” “plainly amount[ed] to deliberate indifference”).

The District’s counterarguments are unavailing. It attempts to distinguish Pierce on the

ground that “Manganelli was in the District’s custody for only . . . twelve hours as opposed to

fifty one days,” and because “there is no evidence that Manganelli was denied any benefit or

service during that time because he was deaf.” District’s Summ. J. Mem. at 31. However, the

District fails to explain why the comparatively short duration of Manganelli’s custody would

require a reasonable juror to conclude that the District was not deliberately indifferent to its

obligation to assess Manganelli’s accommodations needs. Although the duration of his custody

might be an appropriate consideration in determining the amount of damages, it does not compel

the conclusion that the plaintiffs are entitled to no damages whatsoever. And, to the extent that

the District suggests that the relatively short duration of time that Manganelli was in its custody

made conducting an assessment unreasonable, it is not apparent to the Court why twelve hours

would not be sufficient time to make the requisite assessment of Manganelli’s mental health.

Moreover, the Court has already rejected the District’s argument that a Title II claim always

requires a plaintiff to demonstrate that he or she was denied a public entity’s benefits or services.

See infra Part III.E.2.ii; see also, e.g.,

(a) (“A public entity [must] take

appropriate steps to ensure that communications with . . . members of the public with disabilities

are as effective as communications with others.”).

Additionally, the District argues that “there is no evidence that Manganelli requested any

accommodation,” see District’s Summ. J. Mem. at 31; however, the Court has already explained

that no such request was necessary in this case to trigger the District’s obligations, see Pierce,

69

. The Court must also reject the District’s argument that “the District had

in place a policy . . . to [e]nsure that deaf detainees receive accommodations,” and “MPD had a

longstanding policy governing the processing of persons who are suspected of having mental

illness,” and that “[t]he very existence of these policies shows that the District was not

deliberately indifferent to Manganelli’s rights under the ADA.” District’s Summ. J. Mem. at 31.

However, the existence of such policies may prove to be irrelevant, given that the District has not

asserted that they were followed in this case or that they comport with the ADA.

In sum, the Court concludes that the plaintiffs have identified evidence sufficient to

demonstrate that the District failed to reasonably accommodate Manganelli’s deafness in

violation of the ADA, and that the plaintiffs are entitled to potentially recover compensatory

damages for that failure. However, the Court concludes that it must grant summary judgment to

the District on the plaintiffs’ claim that the District violated the ADA by failing to inform Pretrial

Services of Manganelli’s deafness, and must hold in abeyance the District’s summary judgment

motion as to the plaintiffs’ claim that the District failed to reasonably accommodate

Manganelli’s mental illness. Accordingly, the Court must grant in part, deny in part, and hold in

abeyance in part the District’s summary judgment motion as to the plaintiffs’ reasonable

accommodation claim under the ADA.

III. CONCLUSION

For the foregoing reasons, the Court concludes that it must exclude Dr. Welner’s

proposed expert report and testimony as unreliable, but that striking the District’s alleged

undisclosed summary judgment exhibits is not warranted. Additionally, the Court concludes that

summary judgment for the defendants is not warranted on the plaintiffs’ false arrest claims

against both defendants, as well certain aspects of the plaintiffs’ ADA claim against the District

70 for its alleged failure to reasonably accommodate Manganelli’s deafness. However, the Court

concludes that summary judgment for the defendants is appropriate on the plaintiffs’ ADA

claims against the District for wrongful arrest and for failure to inform Pretrial Services of

Manganelli’s deafness, as well as the plaintiffs’ claims for damages arising from Manganelli’s

suicide under the Wrongful Death Act and the Survival Act. Finally, the Court concludes that it

must hold in abeyance the District’s summary judgment motion as to the plaintiffs’ ADA claim

for failure to reasonably accommodate Manganelli’s mental illness pending further briefing by

the parties. Accordingly, the Court will grant Gallaudet’s motion to exclude the testimony of Dr.

Welner, deny the plaintiffs’ motion to strike the District’s alleged undisclosed exhibits, and grant

in part, deny in part, and hold in abeyance in part the defendants’ motions for summary

judgment.23

SO ORDERED this 29th day of October, 2018. REGGIE B. WALTON United States District Judge

23 The Court shall contemporaneously issue an Order consistent with this Memorandum Opinion.

71