                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                             )
ANDRE SYLVESTER WATTS,                       )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )         Civil Action No. 01-0284 (RJL)
                                             )
ANTHONY WILLIAMS, et aI.,                    )
                                             )
               Defendants.                   )
--------------------------)

                                 MEMORANDUM OPINION

       This matter is before the Court on defendant Timothy Harrison's renewed motion for

summary judgment. l For the reasons discussed below, the Court will grant summary judgment

for defendant on the ground that he is entitled to and protected by qualified immunity.2

                                       I. BACKGROUND

       On or about June 12, 1998, defendant was a sworn officer of the Metropolitan Police

Department ("MPD") working in a police uniform and in an off-duty capacity as a security guard

at the Washington Gas Light Company ("Washington Gas") headquarters at 1100 H Street,

N.W., Washington, DC. Notice of Supplemental Filing Regarding Defendant Timothy


               Also pending is plaintiffs motion for "Issuance of an Order" [Dkt. #157], which
the Court will deny.

       2       The District of Columbia and its Mayor have been dismissed as party defendants.
See Watts v. Williams, No. 01-0284, 2006 WL 3734169 (D.D.C. Dec 15,2006), appeal
dismissed, 279 Fed. App. 11 (D.C. Cir. 2008) (per curiam). All proceedings with respect to the
third-party complaint have been stayed pending resolution of defendant's renewed motion for
summary judgment and pending any appeal from such ruling. See Dkt. # 93, 97, 98

                                                 -1-
Harrison's Renewed Motion for Summary Judgment ("Def.'s Notice"), Ex. B ("Harrison Decl.")

~~   1-2. On that day, it appeared that plaintiff "and a cohort committed a common urban ruse in

order to rob an unsuspecting citizen[:]"

                           As the [victim] was walking down New York Avenue, N. W.,
                   [plaintiff s] cohort dropped pocket change in front ofthe [victim] and
                   bent over to retrieve it. This caused the [victim] to stop, at which
                   time [plaintiff] approached her from behind, reached into her purse,
                   and removed her wallet. The two then ran, and the [victim], realizing
                   that she had been robbed, gave chase.

Memorandum of Points and Authorities in Support of Defendant Timothy Harrison's Renewed

Motion for Summary Judgment ("Def.'s Mot."), Ex. D (July 6, 1998 order denying

reconsideration of pre-trial detention order) at 1-2.3 These events occurred at approximately 1:30

p.m. ld., Ex. A (transcript of March 17,1999 proceedings in the Superior Court of the District of

Columbia) at 8. Plaintiff and his cohort entered the Washington Gas building. 4

             According to defendant, the subsequent events occurred as follows:


               The parties do not dispute that plaintiff committed robbery and assault on a police
officer. The prosecutor, however, proffered a different version of the robbery:

                   [Plaintiffs cohort] stepped in front of [the victim] and acted as ifhe
                   was going to open the door into which she was . .. attempting to
                   enter. This was at the location of 1100 H Street, Northwest, in
                   Washing[ton], D.C. At the same time, [plaintiff] stepped behind [the
                   victim]. As [plaintiff s cohort] was attempting to distract the victim
                   by opening the door, [plaintiff] reached into the victim's purse,
                   apparently unzipped it and removed from her purse, that was hanging
                   from her shoulder strap, her wallet.

Def.'s Mot., Ex. A (transcript) at 9. The facts of the underlying robbery are not material in this
case, and, therefore, have no bearing on the Court's analysis of defendant's qualified immunity
argument.
         4
                   It does not appear that plaintiffs cohort was apprehended. See Def.'s Mot., Ex. A
at 10.

                                                    -2-
                        I saw [plaintiff] and another person enter the building and
                 walk into a stairwell in an employee area of the [Washington Gas
                 building]. Another security guard instructed [plaintiff] and his
                 companion to come back out ofthe stairwell. As they were doing so,
                 a woman entered the building, pointed at [plaintiff] and his
                 companion, and shouted that they had taken her wallet.

                         I followed [plaintiff] as he ran into another stairwell leading
                 down to the basement. When he entered the stairwell, he dropped the
                 wallet. [Plaintiff] ignored my commands to stop. When he exited the
                 stairwell into the basement, he ran into the cafeteria where he threw
                 furniture and chairs in an attempt to trip me in my pursuit. Other
                 Washington Gas employees were present.

                          Although [plaintiff] continued to evade me, I was finally able
                 to grab him and tackle him. We ended up on the floor with me on top
                 of him. I was still unable to control him, though, as he kept
                 struggling by snatching his arms from me and trying to push me
                 away. To try to gain control of him, I used the weight of my body to
                 try to keep him down, and I used my hands to try to restrain his arms.
                 He continued to struggle with me in this manner until other officers
                 arrived. Finally under control, [plaintiff] was handcuffed.

Harrison Dec!.   ~~   2-4.

       Larry Rollins, who was in the cafeteria in the basement of the Washington Gas building,

observed defendant chasing plaintiff and observed plaintiff "knocking over tables in front of

[defendant] as they ran all over the cafeteria." Def.'s Notice, Ex. C ("Rollins Decl.") ~ 2.

Plaintiff apparently made his way from the cafeteria to a nearby mailroom. Mr. Rollins further

reported:

                         Concerned for my safety, I decided to leave [the cafeteria]. As
                 I was leaving, waiting for the elevator to arrive, [defendant] called out
                 to me from the neighboring mailroom "get my gun." Other persons
                 who were in the mailroom hid under tables.

                          I ran over to the officer, who was on top of [plaintiff], as
                 [plaintiff] was lying on his back on the floor. [Defendant] was
                 commanding [plaintiff] to "stay down." [Plaintiff], though, had his


                                                   -3-
                   anns and legs wrapped around [defendant] and was trying to get up
                   by rolling [defendant] over. It appeared that [plaintiff] was gaining
                   the advantage in the struggle and that [defendant] was unable to
                   control him. At the same time, I also saw [plaintiffs] hand trying to
                   take the safety clip off[defendant's] holder and remove [defendant's]
                   fireann.

                           I feared that [plaintiff] would take the fireann and shoot
                   [defendant], as well as myself and others present. I took [plaintiff s]
                   hand offthe gun holster and held his ann to the floor. [Plaintiff] was
                   strong, and I had difficulty just keeping his hand away from the gun.
                   [Plaintiff] continued struggling to free himself, with the officer on top
                   of him, until about five minutes later, when additional police officers
                   arrived. The officers picked up [plaintiff] and handcuffed him.

Id.   ~~   2-4.

            According to plaintiff, defendant "beat [him] and struck [him] repeatedly in the head and

upper body" and "applied a chokehold." Amd. Compi. ~ 10. Plaintiff allegedly "sustained

physical injuries, including cuts and bruises to his face and head," id.       ~   11, and subsequently was

treated at District of Columbia General Hospital, id.        ~   12.

            Defendant states that he "did not use a weapon on [plaintiff]" and that he "never choked,

kicked or stomped him." Harrison Decl.         ~   5. He did not "recall ever punching [plaintiff] in the

head or anywhere else on his body," and at no time was plaintiff unconscious. Id. The witness

states that "[a]t no point did [he] see [defendant] choke [plaintiff], kick or stomp him, or hit him

with a closed fist." Rollins Decl. ~ 5. He corroborates defendant's statement that plaintiff "was

conscious at all times." Id. 5


        5     The prosecutor's proffer of evidence largely is consistent with the declarations of
defendant and Mr. Rollins. After the robbery victim chased plaintiff and his unidentified cohort
into the Washington Gas building:

                   [P]laintiff ran into a stairwell which was restricted. He was chased by an off-
                                                                                            (continued ... )

                                                       -4-
        Plaintiff was charged with and pled guilty to one count each of robbery and assault on a

police officer. See generally Def.' s Mot., Ex. A. He was sentenced to a tenn of three to nine

years' imprisonment for robbery, and to a consecutive tenn of one to three years' imprisonment

for assaulting a police officer. Id., Ex. E (May 26, 1999 Judgment and Commitment Order, Case

No. F-4255-98).




       sc. .. continued)
       duty Metropolitan police officer, Timothy Harrison, who was in full unifonn and was
       working part-time as a security guard for [the] Washington Gas Company.
                  At that point, [plaintiff] ran down the stairwell and ignored the commands of
       Officer Harrison to stop. In the course of the chase, [plaintiff] threw to the ground
       the bright pink wallet belong to [the victim]. He was chased down to the basement,
       and in the course of the pursuit he threw furniture in front of Officer Harrison in an
       attempt to make Officer Harrison trip and he eventually ran into the cafeteria and
       mail room area of Washington Gas Company where he was observed by several
       employees who were also in the area.
                  Officer Harrison attempted, unsuccessfully, to try to detain and handcuff
       [plaintiff], who resisted arrest and struggled with Officer Harrison. Officer Harrison
       required the assistance of at least two and as many as three or four civilians who were
       working within the gas company to detain and subdue [plaintiff]. As Officer
       Harrison did not have handcuffs on him, he required the assistance of an officer who
       finally arrived and he was able to handcuff [plaintiff].
                  In the course ofthe struggle, two civilians observed [plaintiff] attempting to
       remove Officer Harrison's handgun, which was in a holster at his hip. One of those
       employees ... , Larry Rollins, removed [plaintiff s] hand from the handgun of Officer
       Harrison, and [plaintiff] was ultimately subdued and placed under arrest. Thereafter,
       he was positively identified by the victim ... as the same person whom she had seen
       ... with her wallet.
                  The wallet was subsequently recovered from the stairwell by [a] security
       guard ... who returned it to the victim and she positively identified it based on the
       appearance of the wallet and the identification that was in it.

Def.' s Mot., Ex. A at 10-12. Under oath, plaintiff admitted that the proffered evidence is true.
Id. at 17.

                                                 -5-
       Plaintiff brings this civil rights action against defendant in his individual capacity, see

Amd. CompI.    ~~   4, 19-2325-27, and he demands compensatory and punitive damages, as well as

attorney's fees and costs.

                                         II. DISCUSSION

                                  A. Summary Judgment Standard

        Summary judgment is appropriate where "the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c); Celotex Corp.

v. Catrett, 477 U.S. 317,322 (1986) (stating that Rule 56(c) "mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails 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"). A material fact is one "that might affect

the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). "If material facts are at issue, or, though undisputed, are susceptible to

divergent inferences, summary judgment is not available." Tao v. Freeh, 27 F.3d 635,638 (D.C.

Cir. 1994) (citing Alyeska Pipeline Servo Co. v. United States Envtl. Prot. Agency, 856 F.2d 309,

314 (D.C. Cir. 1988)); see Anderson, 477 U.S. at 248 (stating that summary judgment is not

appropriate "if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party").

            B. The Court Treats Defendant's Statement of Material Facts as Admitted

        The party opposing a motion for summary judgment "may not rest upon the mere

allegations or denials of his pleading, but ... must set forth specific facts showing that there is a


                                                 -6-
genuine issue for trial." Anderson, 477 U.S. at 248 (citing Fed. R. Civ. P. 56(e)); see Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that the nonmoving

party "must do more that simply show that there is some metaphysical doubt as to the material

facts"); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,

150 (D.C. Cir. 1996).

        Under the local rules of this Court, an opposition to a summary judgment motion must

"be accompanied by a separate concise statement of genuine issues setting forth all material facts

as to which it is contended there exists a genuine issue necessary to be litigated, which shall

include references to the parts of the record relied on to support the statement." LCvR 7(h). "As

the Court of Appeals for the District of Columbia Circuit has emphasized, '[LCvR 7(h) ] places

the burden on the parties and their counsel, who are most familiar with the litigation and the

record, to crystallize for the district court the material facts and relevant portions of the record. '"

Hinson ex rei. N.H. v. Merritt Educ. Ctr., 579 F. Supp. 2d 89,91 (D.D.C. 2008) (quoting

Jackson, 101 F.3d at 151 (discussing predecessor rule to LCvR 7(h) (additional citation

omitted))). Thus, when facts are not controverted in opposition to a summary judgment motion,

the Court "may assume that facts identified by the moving party in its statement of material facts

are admitted." LCvR 7(h). When facts are disputed, however, "[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury

functions, not those ofajudge[.]" Anderson, 477 U.S. at 255.

        Plaintiff offers no alternate version of the events oOune 12, 1998 aside from the meager

factual allegations in the Amended Complaint. Notwithstanding the requirements ofLCvR 7(h),

plaintiff has not submitted a separate statement of genuine issues of material facts as to which he


                                                   -7-
contends there exists a genuine issue for trial. The Court may and therefore does treat

defendant's facts as conceded. See, e.g., Smith v. Napolitano, 626 F. Supp. 2d 81,84 n.2 (D.D.C.

2009) (relying on defendant's submission in employment discrimination case where the plaintiff

neither "offer[s] a counter-presentation of the events leading up to his non-selection, nor does he

contest the defendant's presentation of these events"); DeMartino v. Fed. Bureau of

Investigation, 511 F. Supp. 2d 146,151 (D.D.C.2007) (holding that the "[p]laintiffdoes not

contest, and therefore concedes, defendants' facts in support of summary judgment"); cf

Stephenson v. Cox, 223 F. Supp. 2d 119, 122 (D.D.C. 2002) ("The court's role is not to act as an

advocate for the plaintiff and construct legal arguments on his behalf in order to counter those in

the motion to dismiss.").

                            C. Defendant Is Entitled to Qualified Immunity

       Defendant argues that his "use of force was objectively reasonable under the

circumstances." Def.'s Mot. at 5-9. Even ifhis use of force were umeasonable, he argues that he

"is still entitled to qualified immunity of a reasonable officer could have believed that the force

used was lawfu1." Id. at 9. The Court need not address defendant's alternative argument

because, on this record, defendant demonstrates that his use of force was reasonable under the

circumstances.

                            1. Qualified Immunity is Immunity from Suit

       "[G]ovemment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); see Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified


                                                 -8-
immunity is "an entitlement not to stand trial or face the other burdens oflitigation." Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere

defense to liability; and ... is effectively lost if a case is erroneously permitted to go to trial." Id.

Accordingly, the Supreme Court "repeatedly [has] stressed the importance of resolving immunity

questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224,227 (1991)

(per curiam).

        By definition, qualified immunity is not absolute. Rather, it "is applicable unless the

official's conduct violated a clearly established constitutional right." Pearson v. Callahan, _

U.S. _, _, 129 S. Ct. 808, 816 (2009). "A plaintiff who seeks damages for violation of

constitutional or statutory rights may overcome the defendant official's qualified immunity only

by showing that those rights were clearly established at the time of the conduct at issue." Davis

v. Scherer, 468 U.S. 183, 197 (1984).

                     2. Defendant's Use of Force Was Objectively Reasonable

        All of plaintiff s claims stem from the alleged use of excessive force in effecting his June

12, 1998 arrest. "[AJ II claims that law enforcement officers have used excessive force - deadly

or not - in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be

analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor,

490 U.S. 386, 395 (1989) (emphasis in original); see Tennessee v. Garner, 471 U.S. 1, 7-22

(1985) (analyzing constitutionality of use of force under Fourth Amendment although complaint

alleged violations of both Fourth Amendment and Fifth Amendment's Due Process Clause).

"Such a claim is properly analyzed under the Fourth Amendment's objective reasonableness

standard[] ... which tracks the constitutional text by asking whether the force applied was


                                                  -9-
reasonable." Johnson v. District o/Columbia, 528 F.3d 969,973 (D.C. Cir. 2008) (internal

quotation marks and citations omitted). To determine what conduct is reasonable "requires

careful attention to the facts and circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by flight."

Graham, 490 U.S. at 396. "If the facts alleged no not establish a constitutional violation, [the

Court] end[s] the inquiry and rule[s] for the officer." Johnson, 528 F.3d at 973.

        As the District of Columbia Circuit instructs, the analysis proceeds as follows:

               In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court
               enunciated a two-step analysis for determining whether qualified
               immunity applies. First, the court must determine whether the
               [plaintiff] alleges violations of constitutional rights. If constitutional
               violations are alleged, the court must next determine whether the right
               allegedly violated is clearly established.

Arrington v. United States, 473 F.3d 329,339 (D.C. Cir. 2006) (internal citations omitted).

"[T]he Saucier procedure should not be regarded as an inflexible requirement," however,

Pearson, 129 S.Ct. at 813, and its sequence no longer is mandatory, id. at 818. This Court in its

discretion may address either of the two steps first "in light of the circumstances of the particular

case at hand." Jd. The Court opts to consider "this threshold question: Taken in the light most

favorable to the party asserting the injury, do the facts alleged show the [defendant's] conduct

violated a constitutional right?" Saucier, 533 U.S. at 20l.

       In this case, defendant heard a woman shout that plaintiff and his unidentified companion

had taken her wallet. He observed plaintiff attempt to enter a restricted stairwell, and when

ordered by a security guard to exit that stairwell, he observed plaintiff enter another stairwell



                                                 -10-
leading to the basement. Defendant observed plaintiff drop a wallet, ignore commands to stop,

enter a cafeteria where Washington Gas employees were present, and throw furniture in his path

in an attempt to trip him. After defendant grabbed and tackled plaintiff, plaintiff continued to

struggle to free himself. A witness observed plaintiff attempt to release defendant's gun from its

holster, and, with difficulty, that witness assisted in plaintiffs arrest by taking plaintiffs hand off

of the gun and holding plaintiffs arm to the floor. Aside from plaintiffs unsupported assertions,

there is no evidence in the record that defendant beat, kicked, stomped or punched plaintiff, that

defendant used a chokehold, a weapon, or deadly force, or that plaintiff sustained significant

physical injuries during the encounter.

       In conclusory fashion, plaintiff asserts that:

               any logically minded other police officer would have known that a
               chokehold was unnecessary considering the fact that the plaintiffhad
               been restrained; thus stating by defendant when he said he laid on the
               plaintiff. At the time the defendant was at least 100 pounds heavier
               than the plaintiff, so continuing blows to plaintiff[' s] upper body, face
               and head until the plaintiffwas unconscious was excessive force and
               unnecessary thereby making defendant liable.

PI.'s Opp'n at 2. Elsewhere in his opposition, plaintiff challenges the witness' declaration,

claiming that Mr. Rollins "did not witness plaintiff trying to remove defendant['s] ... revolver

from his holster," and that Mr. Rollins "was never put in any danger by the [plaintiffs] attempt

to flee apprehension." PI.'s Opp'n, Ex. ("Plaintiff['s] Sworn Affidavit") ~~ 1,4. Plaintiff further

attributes a "bad faith" motive to Mr. Rollins' declaration because he had not provided a

statement previously in either the criminal case or this litigation. Id.   ~   3. Plaintiffs assertions

hardly can be considered facts, and even if the assertions amounted to material facts, plaintiff has

failed to refer to the portions of the record on which he relies to support them.


                                                 -11-
        Making an arrest "carries with it the right to use some degree of physical coercion or

threat thereof to effect it." Graham, 490 U.S. at 396. Here, a uniformed MPD officer chased a

fleeing robbery suspect who resisted arrest, who attempted to take the officer's gun, and who

struggled so much that the officer required the assistance of others to subdue him. Based on the

record of this case, the Court concludes that defendant used reasonable force in effecting

plaintiffs arrest, and for this reason, further concludes that defendant did not violate plaintiffs

constitutional rights. Defendant is entitled to qualified immunity, and, therefore, the Court grants

his motion for summary judgment.

        An Order accompanies this Memorandum Opinion.




DATE:                                         ruc~
        cr(3~
                                              United States District Judge




                                                -12-
