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United States District Court for the District of Columbia

June 2, 2005.

JOHN F. FLETCHER, Plaintiff,
DISTRICT OF COLUMBIA et al., Defendants.

The opinion of the court was delivered by: RICARDO URBINA, District Judge


Granting Defendants Baker and Wears' Motion to Amend or Alter Judgment
The remaining defendants in this action, Michael Baker and Michael Wear, move to amend or alter the Order of March 22, 2005 to the extent that it maintains plaintiff's claim brought under 42 U.S.C. § 1981. Upon consideration of the parties' submissions and the relevant portions of the record, the court determines that the evidence supporting the § 1981 claim is insufficient to present to a jury and therefore grants defendants' motion.

  To prevail on a § 1981 claim, plaintiff must demonstrate that the offending conduct, i.e., the police officers' alleged excessive use of force while effecting plaintiff's arrest, was motivated by "purposeful discrimination." General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982). To establish his § 1981 claim, plaintiff must show "that he was (1) treated differently than others who were similarly situated (2) because of his race." Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1413 (D.C. Cir. 1988). Plaintiff bases his claim solely on the fact that during the underlying shooting incident, see Memorandum Opinion at 1-2 & n. 6, a police officer allegedly used the term "nigger" or "nigga." Specifically, in his deposition on August 27, 2002, plaintiff testified that in response to his question as to why he was being targeted, "they said: you killed a nigger." Def.'s Ex. A (Deposition of John Fletcher, pp. 78-79). It is undisputed that plaintiff was leaving the scene of a robbery he had committed. See Mem. Op. at 1. The court concludes that under the circumstances presented, no reasonable juror could find from the alleged insulting remark about a purported victim that the officers shot plaintiff because of his race.

  In opposition to the pending motion, plaintiff proffers his affidavit of April 13, 2005, contradicting for the first time his deposition testimony recorded in 2002 with the assistance of counsel. He avers that he had testified that the shooting officer said "I gonna kill you nigga," and upon the medivac's arrival, the same officer said "[t]he nigga is dead." Pltf.'s Ex. 2 (Affidavit of John Fletcher ¶¶ 5, 6) "Courts have long held that a party may not create a material issue of fact simply by contradicting its prior sworn testimony . . . the prior sworn statement will receive controlling weight unless the shifting party can offer persuasive reasons for believing the supposed correction . . ." Pyramid Securities Ltd. v. IB Resolution, Inc. 924 F.2d 1114, 1123 (D.C. Cir. 1991) (citations omitted); see also Sinskey v. Pharmacia Ophthalmics, Inc. 982 F.2d 494, 498 (Fed. Cir. 1992) ("A party cannot create an issue of fact by supplying an affidavit contradicting his prior deposition testimony, without explaining the contradiction or attempting to resolve the disparity. Where . . . a party has been examined extensively at deposition and then seeks to create an issue of fact through a later, inconsistent declaration, he has the duty to provide a satisfactory explanation for the discrepancy at the time the declaration is filed"). Plaintiff's explanation is that "I either said what I did not mean or the reporter misheard me." Pltf.'s Aff. ¶ 7. The court finds no credence to plaintiff's eleventh hour attempt to preserve this claim by now challenging the accuracy of the transcript that both sides have relied on without question during the course of this lengthy litigation. Accordingly, it is hereby

  ORDERED that Defendants Baker and Wear's Motion to Amend or Alter Judgment [# 273] is GRANTED; and it is

  FURTHER ORDERED that the claim brought under 42 U.S.C. § 1981 is DISMISSED.



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