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Powers-Bunce v. District of Columbia

September 16, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


On May 6, 2008, Officer Michael Burdyn and Sergeant Benita Giles of the United States Secret Service - Uniform Division (the "Federal Defendants") moved the Court to reconsider its decision denying their renewed motion for summary judgment, in which they asserted, inter alia, qualified immunity as a defense to the Fourth Amendment excessive force claim.*fn1 The Federal Defendants contend that the First Amended Complaint failed to plead a valid constitutional violation and that, even if it did, qualified immunity was an appropriate defense to these claims, particularly given that Plaintiff failed to proffer evidence in response to their declarations supporting their motion for summary judgment. For the reasons that follow, the Federal Defendants' Motion for Reconsideration [Dkt. # 52] will be granted.


Federal Rule of Civil Procedure 54(b) governs reconsideration of orders that do not constitute final judgments in a case. Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). Rule 54(b) provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b).Revision may be permitted when the Court has "'patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.'" Singh, 383 F. Supp. 2d at 101 (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). The burden is on the movant to show that some harm would accompany a denial of the motion to reconsider. "In order for justice to require reconsideration, logically, it must be the case that, some sort of 'injustice' will result if reconsideration is refused. That is, the movant must demonstrate that some harm, legal or at least tangible, would flow from a denial of reconsideration." Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005).


The underlying facts of this case are set forth in detail in the Court's March 27, 2008 Memorandum Opinion. See Dkt. # 46; Powers-Bunce v. District of Columbia, 541 F. Supp. 2d 57 (D.D.C. 2008). In that Memorandum Opinion and accompanying Order [Dkt. # 47], the Court granted in part and denied in part the Federal Defendants' Renewed Motion to Dismiss, or in the Alternative for Summary Judgment [Dkt. # 35]. Among other things, the Court denied the Federal Defendants' Motion on Plaintiff's "excessive force" Fourth Amendment claim.*fn2 See Mar. 27, 2008 Order at 1. That claim is described in the Amended Complaint as follows:

Officers Giles and/or Brudyn [sic] used excessive force on Mr. Powers during his arrest and detention. During the autopsy, contusions were identified on Mr. Powers that were consistent with being struck repeatedly with a night stick or similar weapon. Mr. Powers sustained injuries on his buttocks, back of legs, abdomen, back, shins, and fingers. These contusions were recent bruising and were inflicted at or near the time that Mr. Powers was illegally stopped, searched, arrested and brought to the Third District. Upon information and belief, these bruises were sustained during the arrest and detention by Officers Giles and/or Brudyn [sic].

Am. Compl. [Dkt. # 26] ¶ 21. Neither the pleadings nor the evidence presented by Plaintiff indicate, beyond bare aversions, whether the bruises were on the decedent before his arrest and detention. Additionally, there is no substantive evidence linking the bruises to Officer Burdyn or Sergeant Giles. However, in denying the Federal Defendants' Motion on this claim, the Court reasoned that "Plaintiff is entitled to all inferences that run in her favor from the factual averments of her Amended Complaint. While this claim is not more robust than the original*fn3 -- it alleges that Officer Giles and Sergeant Burdyn used excessive force -- that is sufficient, under these circumstances, to overcome a motion to dismiss and allow discovery." Mar. 27, 2008 Mem. Op. at 10 (citing Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).

The thrust of the instant Motion for Reconsideration is that the Court, in its March 27, 2008 Memorandum Opinion, "appear[ed] to address only the Defendants' motion to dismiss to the exclusion of the fully and properly briefed motion for summary judgment." Defs.' Mem. in Supp. of Mot. for Recons. ("Defs.' Mem.") [Dkt. # 52] at 1-2. In determining that Plaintiff's excessive force claim should not be dismissed, "the Court reason[ed] only that Plaintiff's claim is sufficiently substantial to withstand dismissal and permit discovery. The Court [did] not address Plaintiff's failure to come forward with sufficient evidence to avoid summary judgment." Id. at 2. Specifically, the Court did not address the uncontested declarations of Officer Burdyn, Sergeant Giles, and Lieutenant Beres,*fn4 submitted in support of the Federal Defendants' motion for summary judgment. The Federal Defendants contend that the "Officers are entitled to resolution" of their claims "pre-discovery, the absence of which is both their rationale for reconsideration and the harm they would suffer without the relief, in view of the burdens and expense of litigation." Id. at 2-3.

Upon review, the Court agrees that it improperly overlooked the Federal Defendants' alternative request for summary judgment. The Court noted that the excessive force claim barely met the standard applicable to Federal Rule of Civil Procedure Rule 12(b)(6), the standard for dismissal, but did not address whether it survived summary judgment. The Court now concludes that there is an absence of factual dispute concerning the Fourth Amendment excessive force claim, and summary judgment should be granted to the Federal Defendants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (when no genuine dispute exists as to any material fact, summary judgment is required); id. at 248 (a genuine issue of material fact is one that would change the outcome of the litigation).

In all three Declarations submitted by the Federal Defendants in support of their motion for summary judgment, Declarants testified that they did not use physical force on Mr. Powers. See Burdyn Decl. ¶ 14 ("At no time during the arrest was the use of force against Mr. Powers necessary, and no physical force was used on him."); Giles Decl. ¶ 7 ("No force was required by any officer at the scene to control him, and no force was used."); Beres Decl. ¶ 5 ("No force was required by any officer at the scene to control him, and no force was used on Mr. Powers during the transport."). In considering summary judgment, when a moving party "point[s] out to the [court] [] that there is an absence of evidence to support the nonmoving party's case," Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)), the non-moving party may not rest on mere allegations, but must instead proffer specific facts showing that a genuine issue exists for trial, Matasushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Plaintiff offers no evidence to dispute the Declarations or to show that Federal Defendants used excessive force and caused Mr. Powers injury.*fn5 Instead, Plaintiff argues that the Federal Defendants should not be able to convert a motion to dismiss to a motion for summary judgment merely by "attaching self-serving declarations that have not been subject to cross-examination." See Pl.'s Opp'n to Defs.' Mot. for Recons. ("Pl.'s Opp'n") [Dk.t # 55] at 4. This attempt to avoid summary judgment is routinely rejected by courts. See, e.g., Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384 (D.P.R. 1981).

[S]ummary judgment may not be defeated on the gossamer threads of whimsey, speculation and conjecture, and Martinez was required to do more than suggest that something might turn up at trial. To avoid summary judgment a party must do more than whet the curiosity of the court; he must support vague accusations and surmise with concrete particulars. Certainly, Martinez's mere hope to discredit Frito-Lay's witnesses on cross-examination, without any indication of what he hopes to elicit in that manner, is insufficient to defeat summary judgment.

Id. at 392 (internal quotation marks and citations omitted).

Plaintiff has not only failed to counter the Federal Defendants' Declarations, she has failed to identify with specificity any other witness who could offer a contrary point of view.*fn6 Summary judgment must be ...

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