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
MEMORANDUM AND ORDER
Granting Defendants Baker and Wears' Motion to Amend or Alter
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
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