Patricia Grimes v. DC ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2014 Decided July 21, 2015
No. 13-7038
PATRICIA GRIMES, AS THE NEXT BEST FRIEND AND PERSONAL
REPRESENTATIVE OF THE ESTATE OF KARL GRIMES,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02024)
Gregory L. Lattimer argued the cause and filed the briefs
for appellant.
Mary L. Wilson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With her on the brief were
Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General,
at the time the brief was filed. Loren L. AliKhan, Deputy
Solicitor General, Office of the Attorney General for the
District of Columbia, entered an appearance.
2
Before: GRIFFITH and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge GRIFFITH.
PILLARD, Circuit Judge: Juvenile Detainee Karl Grimes
allegedly was beaten to death in November 2005, at the
District of Columbia’s Oak Hill Juvenile Detention Facility.
His mother, Patricia Grimes, has sued the District of
Columbia on behalf of her son’s estate. She claims the
District of Columbia showed deliberate indifference to, and
reckless disregard for, her son’s safety, and that the District
was negligent in hiring, training, and supervising its
employees at Oak Hill in violation of District of Columbia
tort law, the Eighth Amendment, and 42 U.S.C. § 1983. The
district court granted the government’s motion for summary
judgment, and denied as moot Grimes’s cross-motion to strike
the summary judgment motion and to disqualify the Attorney
General of the District of Columbia based on an asserted
conflict of interest. Grimes contends that the district court
should not have granted summary judgment before ruling on
her motion to disqualify the Attorney General, and that the
court incorrectly granted summary judgment as conceded
before she had obtained necessary discovery.
The district court erred in the sequence in which it
rendered its decisions. Because a claim of counsel’s conflict
of interest calls into question the integrity of the process in
which the allegedly conflicted counsel participates, the court
should resolve a motion to disqualify counsel before it turns
to the merits of any dispositive motion. That procedure was
not followed here. We therefore vacate the district court’s
grant of summary judgment and its denial of the motion to
3
disqualify and remand this case for further proceedings.
Because the district court will decide in the first instance
whether there was a conflict of interest or an appearance of
such a conflict in violation of applicable ethics rules and, if
so, will determine the appropriate remedy, we offer only
limited guidance on the remaining issues the parties briefed
and leave to the district court to decide them in view of its
ruling on the merits of the motion to disqualify.
I.
Our legal system is not at its finest when a mother’s case
seeking redress for the sudden and violent death in
government custody of her healthy teenaged son is lost in a
muddle of scheduling inattention, miscommunication, and
lack of follow-up. Oak Hill juvenile detention facility was for
decades notorious for overcrowding, inhumane and unsafe
conditions, and unresponsiveness to the needs of incarcerated
youth. The District of Columbia faced class action litigation
over its failings at Oak Hill, entered a consent decree
requiring court-appointed monitors, and violated the decree so
systematically for so long that it paid millions of dollars in
court-ordered fines. Oak Hill was the subject of critical
findings by the Inspector General, a mayoral Blue Ribbon
Commission, a court-ordered monitor, witnesses before the
D.C. Council and Congress, and was ultimately put under a
court-ordered receivership. The District closed Oak Hill in
2009.1 That is the facility where Karl Grimes died.
1
See generally District of Columbia v. Jerry M., 738 A.2d 1206(D.C. 1999); Review of Deficiencies at the District of Columbia’s
Youth Services Administration: Hearing 108-742 Before the
Subcomm. of the Senate Comm. on Appropriations, 108th Cong. 25
(2004) (Prepared statement of Ronald S. Sullivan Jr., Esq.,
Director, Public Defender Service) (stating that “[t]he observations
4
Rigorous fact discovery and evidentiary testing by
motion or trial might well have established that, despite public
assertions of inadequate supervision and frequent violence
among incarcerated youth at Oak Hill, none of it played any
role in Karl Grimes’s death. Had factual material been
presented and scrutinized, we might better understand the
District of Columbia government’s denial of any “history of
assaults on youth at Oak Hill.” Grimes v. District of
Columbia, 923 F. Supp. 2d 196, 198-99 (D.D.C. 2013); see
also Appellee’s Br. 25, 26. Without evidentiary development
there is no basis for judging the facts here. That is why the
civil rules provide for discovery, motion practice and, where
warranted, trial. But there is more reason here than in the
typical case for concern that the facts have not been
discovered. It is rare that a violent death occurs against a
backdrop of seemingly relevant, severe, and systemic
problems, yet—at least as the record reflects—so little is done
to investigate.
of our expert, the court-appointed monitor, and the Inspector
General only hint at the breadth of the District’s failure to protect
children at Oak Hill from harm. Violent incidents—including knife
fights and assaults serious enough to result in broken jaws—occur
with alarming frequency at Oak Hill. Life on the residential units at
Oak Hill is quite harsh and, accordingly, not at all conducive to
treatment.”); Henri E. Cauvin, Overcrowding at D.C. Youth Center
Draws Criticism, Wash. Post, Jan. 21, 2010,
http://www.washingtonpost.com/wp-
dyn/content/article/2010/01/20/AR2010012004707.html; James
Forman Jr. & Reid H. Weingarten, New Hope at Oak Hill, Wash.
Post, Dec. 24, 2007, http://www.washingtonpost.com/wp-
dyn/content/article/2007/12/23/AR2007122302072.html; Theola
Labbé, Behind Oak Hill’s Fences, Violence and Uncertainty, Aug.
2, 2004, at B1.
5
This case is on its second trip to this court, and Grimes’s
claims have not been considered, even preliminarily, on their
merits. Litigation and management of this case have not been
vigorous or efficient. It appears that no lay or expert
depositions have been taken, nor has documentary evidence
been submitted to the district court. It is difficult to conclude
that the general goal of federal court procedure—that cases
should be decided on their merits rather than through
procedural stumbling—has been served in this case.
Grimes filed her complaint more than six years ago. The
court set a scheduling order and the parties exchanged some
written discovery, but, due in large part to delays while the
government moved for and obtained a protective order,
discovery remained incomplete as the original discovery
deadlines approached. The parties had not conducted
depositions or submitted expert reports, nor had they
otherwise followed up on the initial written materials they had
exchanged. Grimes and the government accordingly moved
in January 2010 to extend discovery before it closed. Grimes
did not designate any expert while the motion was pending.
Nor did she take any depositions or seek information from the
government by way of interrogatories or requests for
admission.
In June 2010, the district court granted the requested
extensions nunc pro tunc, retroactively setting March 20,
2010, as the deadline for expert disclosures, and July 29 as the
deadline for all other discovery. Now facing a new but
already-expired deadline to identify experts and an imminent
overall discovery deadline, counsel conferred and informally
agreed to seek further extension of the discovery schedule;
government counsel informed Grimes’s counsel that he would
file a motion seeking such extension.
6
The government did not follow through and move for a
revised scheduling order, nor did it inform Grimes’s counsel
of its change of plans. At the same time, Grimes’s counsel
apparently relied on the government seeking an extension and
the court granting it; the record reflects no action on his part
in pursuit of discovery or protection of discovery rights
during that summer. In September 2010, a month and a half
after the court’s second overall discovery deadline had
passed, the government moved for summary judgment on the
ground that Grimes lacked evidence to support the essential
elements of her claims.
The District of Columbia argued that Grimes lacked
evidence showing (a) deliberate indifference to a known risk
of the kind of violence that resulted in Grimes’s son’s death,
needed to support her Eighth Amendment claim, see Farmer
v. Brennan, 511 U.S. 825, 835 (1994), (b) a policy, custom, or
practice of the District of Columbia, such as is required to
establish municipal responsibility under Monell v. New York,
436 U.S. 658, 694 (1978), and (c) negligence in hiring,
training, or supervision of staff at Oak Hill needed to establish
tort liability of the district for actions by violent youth in its
custody. Grimes also had not identified any expert, and the
government contended that she could not establish her claim
of negligent hiring, training, and supervision without one.
Grimes’s response did not focus on her need for
discovery to oppose the motion for summary judgment, but on
the Attorney General’s apparent conflict of interest. Grimes’s
counsel had learned of the potential conflict only after the
government filed its summary judgment motion. Grimes
moved to strike the motion on the ground that “it was filed by
improper and inappropriate counsel in violation of the Rules
of Professional Conduct of the District of Columbia.”
7
The government opposed the motion to strike on the
merits and moved the court to treat its summary judgment
motion as conceded in view of Grimes’s failure to submit
evidence in opposition to summary judgment. The district
court, without discussion, granted summary judgment as
conceded, and denied as moot Grimes’s motion to disqualify
the Attorney General and her motion for additional time
within which to oppose the government’s motion to treat its
summary judgment motion as conceded.
Grimes timely moved to alter or amend the judgment,
arguing that summary judgment should have been denied
because she had not had an adequate opportunity to complete
discovery to support her opposition. Grimes’s motion was
accompanied by an affidavit contending that additional fact
discovery by deposition was needed before Grimes could
submit her expert report. The district court denied that
motion, and Grimes timely filed her first appeal.
An earlier panel of this court summarily vacated the
district court’s order. The Court of Appeals directed the
district court on remand to “consider the effect of the 2010
amendments to Federal Rule of Civil Procedure 56 and ‘state
on the record the reasons for granting or denying the summary
judgment motion,’” as required by that rule. Grimes v.
District of Columbia, 464 F. App’x 3, 4 (D.C. Cir. 2012)
(quoting Fed. R. Civ. P. 56(a)).
On remand, the district court requested additional
briefing and again entered summary judgment for the
government. Grimes v. District of Columbia, 923 F. Supp. 2d
196 (D.D.C. 2013). The court, quoting Rule 56, concluded
that “Rule 56(c) permits the movant to demonstrate ‘the
absence . . . of a genuine dispute’ by showing ‘that [the
nonmovant] cannot produce admissible evidence to support’
8
the presence of a genuine dispute.” Id. at 198 (district court’s
ellipses). The court observed that municipal liability on
Grimes’s Eighth Amendment claim would require evidence
both that Oak Hill employees acted with deliberate
indifference to a known risk to the safety of resident
juveniles, and that a municipal custom, policy, or practice had
caused the violation. Id. at 198-99. Grimes had limited her
opposing submissions to requesting a chance to complete
discovery and moving to strike based on the asserted conflict
of interest; she proffered no evidence to support her claim.
The district court thus pronounced itself “satisfied” that the
government had correctly pointed to an “absence of genuine
dispute as to any material fact as to plaintiff’s Eighth
Amendment claim.” Id. at 199. The court further noted that
liability on the claim of negligent hiring, training, and
supervision would require expert witness testimony, but
Grimes had not filed an expert witness report. “Plaintiff
cannot possibly establish the applicable standard of care
without expert testimony because the average layperson does
not possess the technical knowledge needed to judge staffing
and security needs at a juvenile detention facility.” Id.Because Grimes had not introduced evidence or an expert
witness report supporting those essential elements of her
claims, the court concluded that the government was entitled
to summary judgment under Rule 56, as amended. Id. This
appeal followed.
II.
We review de novo a district court’s grant of a motion for
summary judgment, and apply the more deferential abuse-of-
discretion standard to a district court’s denial of a motion to
disqualify counsel. United States ex rel. Folliard v. Gov’t
Acquisitions, Inc., 764 F.3d 19, 25-26 (D.C. Cir. 2014); Hall
v. Clinton, 285 F.3d 74, 79 (D.C. Cir. 2002).
9
The district court erred in failing to consider Grimes’s
motion to disqualify counsel for the District of Columbia
before ruling on the government’s summary judgment motion.
The basis of Grimes’s response to the government’s motion
for summary judgment was that Peter Nickles, then the
Attorney General for the District of Columbia, had a conflict
of interest disqualifying him from appearing as counsel, even
ex officio, on this case. As Attorney General, Nickles was the
lead signatory on the government’s briefs in this case in the
district court. Grimes’s assertions of conflict of interest arose
when her counsel learned that, before he became Attorney
General, Nickles had represented a class of plaintiffs that
included plaintiff’s decedent Karl Grimes in a lawsuit
claiming overcrowding and unsafe conditions, and seeking
systemic reform at the Oak Hill juvenile detention facility
where Grimes later died. See J.A. 90; see also Appellee Br.
34; J.A. 130 (Amended Complaint at 37, District of Columbia
v. Jerry M., 738 A.2d 1206 (D.C. 1999) (No. 1519-85)
(alleging that “[a]s a result of the [Oak Hill] counselors’
inadequate supervision of the residents, there are frequent
assaults of residents by other residents” and that “[a]s a result
of these actions and omissions of the defendants, many of the
children residing at Oak Hill suffer physical harm”)).
Grimes believed that Attorney General Nickles’s role in
this case thus violated applicable rules of professional
conduct. Grimes brought the matter to the district court’s
attention in a motion to strike the motion for summary
judgment and to disqualify the office of the Attorney General
from representing the government in the case. Apart from his
status as the principal and ultimately accountable lawyer for
the District of Columbia, and the appearance of his name on
the papers, there is no record of Nickles’s particular
involvement in this litigation. Nor, however, is there any
indication of measures the government may have taken to
10
isolate Nickles and prevent his involvement in or influence
over the supervision, strategy, or conduct of this litigation.
Grimes cites various ethical rules. The government
brushes aside the conflict allegation. We do not analyze her
disqualification claim here, but it appears that Grimes has
raised at least a plausible claim of conflict of interest. The
Rules of Professional Conduct of the District of Columbia
forbid a lawyer from, inter alia, representing another party in
the same or substantially related matter as that in which he
represented a former client, where the interests of the former
and current client are materially adverse. See D.C. Rule of
Prof. Conduct 1.9. The complaint in this case raises a claim
that, while distinct from the Jerry M. claims in important
ways, seem to overlap with them: The fatal attack on Karl
Grimes was allegedly due to failure on the government’s part
to employ sufficiently numerous and adequately trained staff
to maintain a safe environment at Oak Hill.
In its response to Grimes’s motion to strike, the
government emphasized that Attorney General Nickles “does
not serve as counsel of record in the instant matter.” The
government nonetheless listed the Attorney General at the top
of the list of counsel on the brief, just as on earlier filings, and
cited no authority that only counsel “of record” is subject to
conflicts rules. The government also pointed to the Superior
Court’s order holding that the Attorney General’s office was
not conflicted off of the Jerry M. case itself, even though
Nickles had been plaintiff’s counsel in Jerry M. and then
became Attorney General while that case was pending. The
government failed to acknowledge, however, the Superior
Court’s observation that, in Jerry M., “at the outset of Mr.
Nickles’s employment with the District government, it
instituted measures to separate Mr. Nickles from participation
in this litigation.” J.A. 179. No such prophylactic separation
11
was shown to have been in place regarding the litigation of
this case.
The district court did not consider the merits of the
attorney-disqualification motion. Instead, after granting
summary judgment against Grimes, the court denied that
motion as moot. Typically, a district court enjoys broad
discretion in managing its docket and determining the order in
which a case should proceed. See Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151-
52 (D.C. Cir. 1996); see also In re Fannie Mae Secs. Litig.,
552 F.3d 814, 822 (D.C. Cir. 2009); Marinechance Shipping,
Ltd. v. Sebastian, 143 F.3d 216, 218 (5th Cir. 1998). That
discretion is limited, however, in circumstances such as these.
Because a conflict of interest could affect the fairness and
impartiality of the proceeding, or the perception of fairness
and impartiality, we hold that a plausible claim of conflict
must be resolved before allegedly conflicted counsel or the
court takes further action in the case.
For the very reasons that the ethics rules forbid lawyers
to enter into representations that create conflicts of interest or
the appearance thereof, a district court must promptly address
allegations of conflict. As the Sixth Circuit recently held in a
similar case, “[a] district court must rule on a motion for
disqualification of counsel prior to ruling on a dispositive
motion because the success of a disqualification motion has
the potential to change the proceedings entirely.” Bowers v.
Ophthalmology Grp., 733 F.3d 647, 654 (6th Cir. 2013). The
Bowers court emphasized that conflicts of interest are
particularly problematic at the summary judgment stage,
making it “especially important” to prioritize ruling on a
disqualification motion before deciding a Rule 56 motion. Id.For example, “if counsel has a conflict from previously
representing the party seeking disqualification . . . there is a
12
risk that confidential information could be used in preparing
or defending the motion for summary judgment . . . .” Id.Resolving asserted conflicts before deciding substantive
motions assures that no conflict taints the proceeding, impairs
the public’s confidence, or infects any substantive motion
prepared by or under the auspices of conflicted counsel.2
The structural importance of counsel’s avoidance of
conflicts of interest and any appearance of such conflicts, and
the high respect due to binding requirements of professional
responsibility, support the Bowers approach. Once a party
moves to disqualify an adverse party’s counsel, the district
court may not entertain a dispositive motion filed by the very
counsel alleged to be conflicted until the court has first
determined whether that counsel is disqualified. As in
Bowers, the district court here erred in first granting summary
judgment and then denying as moot the motion to disqualify.
That error requires us to vacate the district court’s grant of
summary judgment and its denial of the motion to disqualify,
and remand for the district court to consider the motion to
disqualify before ruling on summary judgment.3
2
The Seventh Circuit in Harker v. University Professionals of
Illinois, 172 F.3d 53 (7th Cir. 1999) (unpublished), denied as moot
a motion to disqualify counsel in light of its decision that the case
was barred by the Eleventh Amendment and the statute of
limitations. There did not appear to be any argument in that case
that disqualification motions must be resolved before the court rules
on dispositive motions.
3
Rule 56(e) empowers district courts in response to motions for
summary judgment to issue “any . . . appropriate order.” Fed. R.
Civ. P. 56(e)(4). As discussed in the text, district courts must
decide motions to disqualify before ruling on the merits of a
summary judgment—an obligation readily accommodated by Rule
56(e)’s allowance for any “appropriate order.”
13
The government contends that the district court implicitly
denied the motion to disqualify on its merits, and that reversal
is not warranted merely to require the court to make that
denial explicit. The record belies that contention. The district
court ruled on Grimes’s Motion to Strike after it granted
summary judgment before the first appeal; the court clearly
stated that it denied the disqualification motion as moot in
view of its grant of summary judgment. The district court did
not revisit the disqualification issue after remand, when it
once again granted summary judgment for the government.
The government’s alternative ground—that even if the
district court denied the motion to disqualify only on grounds
of mootness, we should affirm the denial on the merits—
requires a factual record not yet developed. Despite his name
appearing on all the district court papers and his role as the
chief legal officer for the District of Columbia, the
government contends that Attorney General Nickles did “not
serve as counsel.” Nothing in the factual record here rebuts
the presumption that a lawyer whose name appears on a paper
filed in court bears some responsibility for it.4 There is no
evidence that, for example, the Attorney General’s Office
instituted measures to insulate Nickles from supervisory or
other participation in this litigation, as it apparently did in the
Jerry M. case itself. The record is equally devoid of evidence
that confidential client information Nickles accessed in Jerry
M. had any effect on the government’s litigation of this case.
It is unclear whether this matters if there was a clear
appearance of impropriety, but we leave this to be addressed
4
District of Columbia counsel’s assertions in briefing that Mr.
Nickles played no role in the litigation of this case are not evidence
upon which a court may rely. See, e.g., Orson, Inc. v. Miramax
Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996); Lopez v.
Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1515 n.11
(1st Cir. 1991).
14
on remand. We decline to consider the merits of the motion
to disqualify in the first instance, before there have been
appropriate factual inquiries and legal determinations in the
district court.
III.
The propriety or not of summary judgment on its merits
may need to be revisited once the district court has decided
the conflict-of-interest question. We limit ourselves here to
some considerations that may inform the proceedings on
remand.
A.
Once the district court has resolved the merits of the
motion to disqualify, it will need to determine how the
litigation should proceed. In the event the court concludes
there was a conflict or an appearance of impropriety, it will
have to decide whether the effects were prejudicial or
harmless. Grimes assumes that, if Attorney General Nickles
was conflicted, the appropriate remedy would be to strike the
motion for summary judgment. That may be, but it is not
necessarily so. The nature and scope of any conflict
invariably would inform whether the proper response would
be as Grimes suggests, or whether a different cure would be
appropriate.
If the district court determines that there was no conflict,
it will similarly need to consider how to proceed. The record
does not suggest that Grimes wishes to abandon her claims,
but it also appears to lack evidence needed to carry them over
the summary judgment threshold. Grimes protests that she
was unable to complete discovery. She does not explain,
however, what she was doing during the discovery time she
had.
15
Rule 56(e) specifically empowers a court to give a party
who has failed to address a summary judgment movant’s
assertions of fact “an opportunity to properly support or
address” the fact. Fed. R. Civ. P. 56(e)(1). The 2010
Advisory Committee Note to Rule 56(e) states that
“afford[ing] an opportunity to properly support or address [a]
fact” is “in many circumstances . . . the court’s preferred first
step.” Complementary to Rule 56(e)(1), Rule 56(d)
establishes a mechanism for nonmovants who lack the facts
they need to seek an opportunity to gather more information
before responding to a motion for summary judgment. Fed. R
Civ. P. 56(d); see Convertino v. U.S. Dep’t of Justice, 684
F.3d 93, 99 (D.C. Cir. 2012) (discussing then-Rule 56(f),
which is now Rule 56(d)).
At the same time, Rule 56(e) authorizes a less forgiving
approach in appropriate circumstances. It allows a court to
“consider [a] fact undisputed” if it has not been properly
supported or addressed as required by Rule 56(c). Indeed, for
the evidentiary burden that Rule 56(c) places on nonmovant
plaintiffs to function, a court must be able to evaluate an
inadequately supported assertion of material fact and deem it
not materially disputed, such that summary judgment is
warranted in whole or in part.
In remanding the case the first time, the earlier panel
mentioned not only Rule 56(e), but also Federal Rule of Civil
Procedure 55 and District of Columbia District Court Local
Rule 7(b). Rule 55 by its terms applies to a judgment against
“a party against whom a judgment for affirmative relief is
sought,” Fed. R. Civ. P. 55(a)—i.e. a defendant (or a party
defending against a counterclaim or cross-claim); it is not
applicable to a plaintiff, such as Grimes in this case, in a
defensive posture with respect to a motion for summary
judgment. Of general relevance, however, is Rule 55’s
16
implicit preference for judgments on the merits, and its
cautions against default as a sanction for curable non-response
or lack of diligence. See, e.g., Fed. R. Civ. P. 55 Advisory
Committee Note to the 2007 Amendments (stating that “[a]cts
that show an intent to defend” frequently defeat a default
judgment). Grimes clearly has an intent to make her case, not
to abandon her claims on their merits. Grimes’s response was
limited to seeking disqualification and requesting more time
to respond otherwise to the summary judgment motion.
District of Columbia District Court Local Rule 7(b), for
its part, gives a party two weeks to respond to an opponent’s
motion, and allows the court to “deem[] conceded” a motion
to which no timely response is made. The district court did
not explain how Grimes’s response to summary judgment
could be treated as a “non-response” indicating concession of
summary judgment within the meaning of Local Rule 7(b); it
merely stated that “Local Civil Rule 7(b) . . . can be construed
and applied consistently with Rule 56(e).” Grimes, 923 F.
Supp. 2d at 198.
In view of these considerations, we leave it to the district
court to decide in the first instance how to proceed in light of
its ruling on the asserted conflict of interest.
B.
Because the district court may revisit the summary
judgment question on remand, we briefly reiterate the
governing legal standard. Grimes faults the government for
merely pointing out in its summary judgment motion that she
lacked factual support for her claims, without citing to factual
material in the record that supported the government’s version
of events. Appellant’s Br. 26-27; Appellant’s Reply 1-8. She
contends that, if the court had examined the substance of the
government’s motion and not simply relied on her lack of
17
opposition, it would have denied the motion as inadequately
supported. Appellant’s Br. 23-27. Grimes also sees
inconsistency in the district court crediting the government’s
position, which cited to Grimes’s complaint, while it
“ignore[d] other paragraphs of the very same complaint that
refute” the government’s “unsupported assertions.” Id. at 27;
see id. at 23-26, Appellant’s Reply 1, 5-6. These claims badly
distort the requirements of Rule 56.
Grimes fails to appreciate that the burden on a defendant
moving for summary judgment may be discharged without
factual disproof of the plaintiff’s case; the defendant need
only identify the ways in which the plaintiff has failed to
come forward with sufficient evidence to support a reasonable
jury to find in her favor on one or more essential elements of
her claim. Under the current version of Rule 56(c)(1)(B), “[a]
party asserting that a fact cannot be . . . genuinely disputed
must support the assertion by . . . showing that . . . an adverse
party cannot produce admissible evidence to support the fact.”
That point is driven home in the Advisory Committee Note,
which stresses that “a party who does not have the trial
burden of production may rely on a showing that a party who
does have the trial burden cannot produce admissible
evidence to carry its burden as to the fact.” Fed. R. Civ. P. 56
Advisory Committee Note to the 2010 Amendments.
Grimes relies on Adickes v. Kress, 398 U.S. 144, 157
(1970), for the proposition that “it has consistently been held
that the moving party bears the burden of demonstrating the
absence of any genuine issue of material facts.” Appellant’s
Br. 8; Appellant’s Reply 8. But the Supreme Court in Celotex
Corp. v. Catrett Corp., 477 U.S. 317 (1986), made clear that
any suggestion in Adickes that a defendant seeking summary
judgment must come forward with evidence was a misreading
of Rule 56. Celotex, 477 U.S. at 325. A defendant need not
18
submit “affidavits or other similar materials negating the
opponent’s claim.” Id. at 323. A movant need only
“‘show[]’—that is, point[] out to the district court—that there
is an absence of evidence to support the nonmoving party’s
case.” Id. at 325. A defendant moving for summary
judgment must still “discharge the burden the rules place
upon him: It is not enough to move for summary judgment
without supporting the motion in any way or with a
conclusory assertion that the plaintiff has no evidence to
prove his case.” Id. at 328 (White, J., concurring); see Beatty
v. Washington Metropolitan Area Transit Authority, 860 F.2d
1117, 1120-21 (D.C. Cir 1988). The burden that the movant
“always bears” is that of “informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323; see
id. at 328 (White, J., concurring) (agreeing that a moving
defendant need not “always support his motion with evidence
or affidavits showing the absence of a genuine dispute about a
material fact”); id. at 331-32 (Brennan, J., dissenting) (a
defendant moving for summary judgment “may demonstrate
to the Court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving
party’s claim,” and where the record lacks evidence to support
essential elements of plaintiff’s claim, “the moving party may
demonstrate this by reviewing for the court the admissions,
interrogatories, and other exchanges between the parties that
are in the record.”).
The district court’s acceptance of the government’s
reference to Grimes’s complaint was not in error. Grimes
alleged some facts with which the government agrees, and
that thus are not in dispute: Karl Grimes was a resident at
Oak Hill when he was injured in a fight with another resident,
sustained a head injury, and died five days later. See
19
Statement of Material Facts as to Which There Is No Genuine
Issue, J.A. 84. The government referred to Grimes’s
complaint to “point out,” in keeping with Celotex, the facts
surrounding Karl Grimes’s death with which it agrees. The
government’s argument is that those facts do not, without
more, constitute a violation of Grimes’s rights.
Because Grimes is the plaintiff and so bears the burden of
proof of her claims, it is well established that she cannot rely
on the allegations of her own complaint in response to a
summary judgment motion, but must substantiate them with
evidence. Celotex, 477 U.S. at 324 (stating that “Rule 56(e)
permits a proper summary judgment motion to be opposed by
any of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves”); Bush v. District of
Columbia, 595 F.3d 384, 386-87 (D.C. Cir. 2010); see Fed. R.
Civ. P. 11(b)(3).5 As a plaintiff opposing summary judgment,
it was Grimes’s burden to identify evidence that a reasonable
jury could credit in support of each essential element of her
claims. There was thus no inconsistency in the district court’s
acceptance of the government’s reference to the complaint as
its way of expressing its agreement to certain basic facts, and
the court’s simultaneous refusal to credit other allegations in
the complaint as evidentiary support for Grimes’s opposition
to summary judgment.
5
Allegations of facts within a plaintiff’s personal knowledge are
evidence upon which she may rely in opposing summary judgment.
See Fed. R. Civ. P. 56(c)(4). If a complaint is verified—which is
no longer typical—and it otherwise satisfies the requirements of
Rule 56(c)(4), it has the same evidentiary value as a plaintiff’s
affidavit or sworn declaration. See, e.g., Neal v. Kelly, 963 F.2d
453, 457-58 (D.C. Cir. 1992) (collecting cases). The complaint
here, however, is not verified. In any event, many of its essential
allegations are not facts within Grimes’s personal knowledge and
thus require other evidentiary support.
20
In sum, the fundamental questions on summary judgment
are (1) whether the movant has borne its “initial responsibility
of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact,” and, if so, (2)
whether the nonmoving party has borne her burden “to go
beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Celotex, 477 U.S. at 323-24. As Judge
Griffith’s separate opinion emphasizes, “a district court must
always determine for itself whether the record and any
undisputed material facts justify granting summary
judgment.” Concurrence at 4. When such independent
scrutiny confirms fatal shortfalls in the evidence necessary to
support a verdict in a nonmoving plaintiff’s favor, the motion
may be granted.
C.
Finally, we pause briefly to note that various twists in this
litigation have been less than conducive to orderly and full
investigation of Grimes’s claims. By granting nunc pro tunc
an already-expired motion for an extension of time to submit
expert reports, the court offered an illusory opportunity.
Government counsel agreed to seek a discovery extension that
it never sought, instead filing a summary judgment motion
that capitalized on Grimes’s incomplete discovery as the basis
for final judgment against her. The court then decided the
pending motions in erroneous sequence, granting summary
judgment for want of evidence with a motion to disqualify
counsel pending, and then denying the disqualification motion
as moot.
21
Grimes’s counsel appears to have shown perilous
inattention to or misapprehension of a plaintiffs’ burden in
litigating a case such as this one. Counsel for a party that
bears the burden of proof on any issue must be particularly
diligent in protecting discovery opportunities, and prompt and
assertive in requesting needed information. Grimes, as
plaintiff, bears the burden of proof on her claims, and some of
the information needed to carry that burden is likely
obtainable only through discovery from opposing parties.
Even granting that Grimes’s counsel did not alone cause the
discovery scheduling confusion in this case, the reality is that,
as a practical matter, it is Grimes who stands to suffer from it.
Her counsel must take primary responsibility for requesting
discovery, diligently pressing for its production, and
assidously defending discovery prerogatives. Once a properly
supported summary judgment motion is made, it is the
plaintiff who bears the burden to gather and present the
evidence to the court. Counsel must carefully attend to his
obligations so as to avoid decision of his client’s claims based
on procedural failings, and to protect the opportunity for a
merits-based resolution.
* * *
We vacate the district court’s grant of summary judgment
and its denial as moot of the motion to disqualify and to
enlarge time to respond to the motion for summary judgment,
and remand the case for the district court to decide the motion
to disqualify before ruling on any dispositive motion.
So ordered.
GRIFFITH, Circuit Judge, concurring:
I join the majority opinion in full but write separately to
raise concerns with how the district court construed the Rules
of the United States District Court for the District of Columbia
(Local Rules) in granting summary judgment to the District on
Grimes’s Eighth Amendment claim.
As the majority opinion recounts, Grimes did not file an
opposition to the District’s motion for summary judgment.
Maj. Op. 6-8. Instead, she asked the district court to strike the
motion based on an alleged conflict of interest involving the
District’s former Attorney General. The court refused and
granted the District’s motion “as conceded” without further
explanation. See J.A. 189. We reversed, instructing the court to
state its rationale for granting summary judgment. Grimes v.
District of Columbia, 464 F. App’x 3, 4 (D.C. Cir. 2012).
On remand, the district court reached the same result as
before and this time supplied an explanation for its decision, as
we had directed. The explanation, however, was so brief as to
be unclear. After reciting relevant portions of Federal Rule
56(e) and Local Rules 7(b) and 7(h), the court observed that the
Local Rules “can be construed and applied consistently with
[Federal Rule] 56(e)” and granted summary judgment to the
District, explaining that it was relying on “uncontroverted
assertions” in the District’s motion for summary judgment.
Grimes v. District of Columbia, 923 F. Supp. 2d 196, 198
(D.D.C. 2013). In light of this explanation, I see only two ways
the court could have reached this result. Either would be
incorrect.
A
In its brief arguing for summary judgment, the District
repeatedly stated that “the record contains no evidence”
2
supporting any element of Grimes’s Eighth Amendment claim.
See J.A. 77. If the district court treated these assertions as
admitted based on Grimes’s failure to oppose summary
judgment, then it misapplied Federal Rule of Civil Procedure
56(e)(2) and Local Rule 7(h).
A motion for summary judgment typically includes a brief
or memorandum arguing why summary judgment is legally
appropriate. In support of its motion, the moving party also
submits a separate statement of material facts that it claims are
not in dispute. See D.D.C. R. 7(h).* If the nonmoving party
sees things differently, it must identify for the court the facts it
claims are in dispute and must be resolved at trial. Id. Both the
Federal and Local Rules anticipate that the nonmoving party,
like Grimes here, might not rebut the moving party’s asserted
facts. Federal Rule 56(e)(2) provides, “If a party . . . fails to
properly address another party’s assertion of fact . . . the court
may . . . consider the fact undisputed for purposes of the
motion [for summary judgment].” FED. R. CIV. P. 56(e)(2). The
Advisory Committee’s Notes explain that this rule “reflects the
‘deemed admitted’ provisions in many local rules.” FED. R.
CIV. P. 56(e)(2) Advisory Committee’s Note (2010). Under the
local rule relevant here, the district court may “assume” that
the nonmoving party “admitted” any facts that it failed to
“controvert” after the moving party requested summary
judgment. See D.D.C. R. 7(h)(1).
Here, the District identified only three facts in its
“Statement of Material Facts as to Which There Is No Genuine
Issue”: Karl Grimes was committed to Oak Hill; he was injured
* The Federal Rules describe only how a party should support
factual assertions. See FED. R. CIV. P. 56(c). They leave courts free
to determine where those assertions should appear. See FED. R. CIV.
P. 56(c)(1) Advisory Committee’s Note (2010).
3
in a fight with another resident there; and he died after
suffering a head injury in that fight. J.A. 84. Because Grimes
never opposed summary judgment and therefore did not
controvert these assertions, Local Rule 7(h) allowed the district
court to assume that she admitted these facts, but no others. But
the District’s repeated assertion in its brief that no record
evidence supported Grimes’s claim could not be conceded
simply because Grimes never argued otherwise. In the first
place, this assertion is not a statement of fact but a legal
conclusion that required the court to apply law (the elements of
Grimes’s Eighth Amendment claim) to fact (any undisputed
facts plus anything in the record). The “deemed admitted”
rules, however, apply only to facts. See FED. R. CIV. P. 56(e);
D.D.C. R. 7(h). Moreover, the “deemed admitted” rules apply
only to a party’s statement of material facts, but the District’s
assertion appeared only in its brief. The district court erred if it
granted summary judgment because it “deemed admitted” the
District’s assertions that the record did not support Grimes’s
Eighth Amendment claim.
B
Alternatively, the district court may have concluded that
the failure of Grimes to oppose the District’s motion for
summary judgment was a concession of the motion’s merit.
This, too, would be error because motions for summary
judgment may not be conceded for want of opposition. Federal
Rule 56 permits a district court to grant summary judgment
only if “the movant shows that there is no genuine dispute as to
any material fact.” FED. R. CIV. P. 56(a). The burden is always
on the movant to demonstrate why summary judgment is
warranted. The nonmoving party’s failure to oppose summary
judgment does not shift that burden. Contra Grimes, 923 F.
Supp. 2d at 198 (granting summary judgment because “the
nonmovant fail[ed] to demonstrate a genuine dispute as to any
4
material fact” (emphasis added)). For that reason, a district
court must always determine for itself whether the record and
any undisputed material facts justify granting summary
judgment. See FED. R. CIV. P. 56(e)(3) (“If a party . . . fails to
properly address another party’s assertion of fact . . . the court
may . . . grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it.”).
In announcing its decision to grant summary judgment to
the District, the district court cited Local Rule 7(b). See
Grimes, 923 F. Supp. 2d at 198. That rule requires a party
opposing any motion to file “a memorandum of points and
authorities in opposition to the motion” within fourteen days.
See D.D.C. R. 7(b). The rule further provides that “the [c]ourt
may treat the motion as conceded” if the opposing party fails to
file its motion in opposition within that time. Id.
On its face Local Rule 7(b) appears to allow a district court
to treat an unopposed motion for summary judgment as
conceded, but that cannot be the case because of the demands
of Federal Rule 56. And local rules, by law, cannot conflict
with federal rules. See FED. R. CIV. P. 83. For this reason, every
circuit to have considered the question has concluded that
failure to oppose a motion for summary judgment is no
concession, regardless of what local rules might provide. See,
e.g., Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.
2006); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996);
Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993);
Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922
F.2d 168, 175 (3d Cir. 1990); Jaroma v. Massey, 873 F.2d 17,
19-20 (1st Cir. 1989); Hibernia Nat’l Bank v. Administracion
Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985).
5
The Local Rules can still be read harmoniously with
Federal Rule 56. As already noted, Local Rule 7(h) allows only
certain uncontroverted facts to be “admitted,” consistent with
the demands of Federal Rule 56. And by their titles, Local Rule
7(h) (“Motions for Summary Judgment”) applies specifically
to motions for summary judgment, while Local Rule 7(b)
(“Opposing Points and Authorities”) applies to motions in
general. In my view, the best way to read these rules is to apply
Rule 7(h) and not Rule 7(b) when a nonmoving party fails to
oppose a motion for summary judgment. Cf. Gozlon-Peretz v.
United States, 498 U.S. 395, 407 (1991) (holding that a more
general statute “does not apply” because “[a] specific provision
controls over one of more general application”).
To be clear, the District did all that the rules require. It
submitted a statement of undisputed material facts and a brief
explaining why summary judgment was appropriate. As our
majority opinion explains, Celotex does not require a
defendant moving for summary judgment to do anything more
than point out to the court that the record cannot support the
plaintiff’s claim. See Maj. Op. 17-20 (citing Celotex Corp. v.
Catrett Corp., 477 U.S. 317 (1986)). But even if the
nonmoving party does not oppose summary judgment, the
district court may not treat the motion as conceded. Instead, the
court must examine the record on its own and determine that
the moving party’s assertions warrant summary judgment. The
district court took those very steps for Grimes’s claim of
negligent hiring, training, and supervision. See Grimes, 923 F.
Supp. 2d at 199 (granting summary judgment “based on the
uncontroverted assertions in defendant’s [motion for summary
judgment] and plaintiff’s failure to designate an expert
witness,” and explaining why an expert witness was necessary
to Grimes’s claim (emphasis added)). But when it came to her
Eighth Amendment claim, the court seems to have treated the
matter as conceded simply because she failed to oppose the
6
motion. See id. at 198-99 (noting that the District “asserts” that
Grimes could not cite any record evidence supporting any
element of her claim and then holding that “the [c]ourt
considers defendant’s assertions to be undisputed for purposes
of the motion”); see also id. at 198 (“[Rule 56] and the
accompanying Advisory Committee Notes do not prohibit this
Court from granting summary judgment where, as here, the
nonmovant fails to demonstrate a genuine dispute as to any
material fact.”). The Federal Rules do not permit this.
Admittedly, one cannot fault the district court’s course
here. We have endorsed such an approach. See FDIC v.
Bender, 127 F.3d 58, 68 (D.C. Cir. 1997) (“[I]t was not an
abuse of discretion for the district court, pursuant to [the
predecessor to Local Rule 7(b)], to treat the [movant’s] motion
for summary judgment as conceded.”); see also Skrzypek v.
FBI, No. 10-5430, 2011 WL 2618182 (D.C. Cir. June 21,
2011); Giraldo v. U.S. Dep’t of Justice, No. 02-5058, 2002 WL
1461787 (D.C. Cir. July 8, 2002). Following our lead, district
judges in this circuit have frequently treated unopposed
motions for summary judgment as conceded. See, e.g., Smith v.
U.S. Dep’t of Justice, 987 F. Supp. 2d 43, 46-47 (D.D.C. 2013)
(citing Grimes v. District of Columbia, 923 F. Supp. 2d 196(D.D.C. 2013)); Burke v. Inter-Con Sec. Sys., Inc., 926 F.
Supp. 2d 352, 356 (D.D.C. 2013); Cromartie v. District of
Columbia, 729 F. Supp. 2d 281, 285 (D.D.C. 2010); Indus.
Bank of Washington v. Techmatics Techs., Inc., 763 F. Supp.
629, 636 (D.D.C. 1991).
In an appropriate future case, we may find it necessary to
reconsider Bender and the way Local Rule 7(b) has been
applied to motions for summary judgment. In the meantime, I
note that the rule is discretionary. Thus, even if we have said
that a court may treat an unopposed motion for summary
judgment as conceded, it need not do so. The wiser course for
7
district courts is to conduct an independent review of the record
to determine whether there remains any genuine dispute over
material facts. If not, the court should say as much without
relying upon any concession by the nonmoving party.