UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 00-10027
(Summary Calendar) _________________
TOMMY L. DOOLITTLE,
Plaintiff-Appellant,
versus
STEPHEN BAUGH, Dallas Police Officer; TROY KLINGLESMITH, Dallas Police Officer;
Defendants-Appellees.
Appeal from the United States District Court For the Northern District of Texas Dist. Ct. No. 3: 98-CV-2463-G
November 3, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Tommy L. Doolittle appeals the summary judgment in favor of Defendants, Officers Stephen
Baugh and Troy Klinglesmith. Finding that the district court properly granted summary judgment,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. we now affirm.
Officers Baugh and Klinglesmith were patrolling in the 1400 block of Fitzhugh when they saw
a man standing on the porch of a known drug house. The uniformed officers stopped their marked
patrol car and walked towards the man, who froze upon seeing them. Officer Baugh saw what he
thought to be a plastic bag handed through the door to the man on the porch. Officer Baugh grabbed
the hand of the man at the door, Tommy L. Doolittle. Doolittle pulled his hand away and retreated
into the house. Officer Baugh pursued him into the house. Doolittle ran into the bathroom and he
proceeded to pull the door in as Officer Baugh attempted to pull the door open. Officer Baugh got
the door open only to find Doolittle pointing a gun at his head. Officer Baugh slammed the door shut
and ran out of the house. Doolittle fired several shots after the officers, who returned fire. Doolittle
brought suit under 18 U.S.C. §1983 alleging violations of his Fourth Amendment rights.
The district court granted the motion for summary judgment. As a threshold matter, the
district court examined the Defendants’ qualified immunity defense. It found that Doolittle failed to
allege particularized facts that are required t o defeat a summary judgment motion grounded in
qualified immunity. Instead, Doolittle made conclusory allegations that the defendants entered his
home without probable cause. With regard to Doolittle’s claim of excessive force, the district court
found that Doolittle failed to allege facts to show that a reasonable officer would have found Officer
Baugh’s actions unjustified. The district court noted that, like his motion, Doolittle’s affidavits
contained only conclusory statements, which were insufficient to overcome the qualified immunity
claim.
Summary judgment is proper if the movant demonstrates that there are no genuine issues of
material fact. See Duckett v. City of Cedar Park, 950 F.2d 272, 275 (5th Cir. 1992). On appeal from
-2- grant of summary judgment, we review the record de novo. We view the evidence in the light most
favorable to the nonmoving party below, here Doolittle. See id. The officers are entitled to a
judgment as a matter of law if Doolittle fails to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof. See Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(c). If the defendants
have shown the absence of genuine issues of material facts, Doolittle must “designate specific facts
showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). In order to meet this burden, the facts must be more than conclusory allegations. See id.
With regard to the Defendants’ qualified immunity defense, we must first inquire as to
whether Doolittle has alleged the violation of a clearly established constitutional right. See Siegert
v. Gilley, 500 U.S. 226, 232,111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Duckett, 950 F.2d at
276-77. Even if we find that Doolittle has alleged such a violation, qualified immunity shields public
officials from civil liability so long as “their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Druckett, 950 F.2d at 279 quoting Anderson v.
Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, (1987). Or put another way, we look at the objective
legal reasonableness of the officers’ actions. See Druckett, 950 F.2d at 280. Where a qualified
immunity defense has been asserted, the plaintiff faces a heightened pleading requirement. The
plaintiff must plead with particularity the basis for defeating that affirmative defense. See Elliot v.
Perez, 751 F.2d 1472, 1473 (5t h Cir. 1985). To plead with particularity, the plaintiff must assert
more than mere conclusions. See Schultea v. Wood, 47 F.3d 1427, 1433-434 (5th Cir. 1995)
Doolittle appeals the summary judgment on two grounds. First, he asserts that there are
-3- genuine issues of material fact. Doolittle now contends for the first time that the officers had
determined that no drug transaction had taken place before Officer Baugh grabbed Doolittle’s hand.
Because he did not raise this factual contention at the district court, we cannot review it on appeal.
See Varnado v. Lynaugh, 920 F.2d 320, 321 (5t h Cir. 1991) (holding that plaintiff waived factual
contentions not raised at the district court). Doolittle argues that the hand drawn map submitted to
the court raises issues of material fact. Assuming arguendo that this is evidence competent for
summary judgment, this map verifies the officers’ version of events. The map raises only one potential
issue of material fact: Doolittle’s position in the house when the officers approached. The map
shows Doolittle as being in his living room rather than at the door. Doolittle, however, now concedes
that he was at the front door when the officers approached rather than in his living room. Because
he has now abandoned this contention, we will not address it. See Brinkman v. Abner, 813 F.2d 744,
748 (5th Cir. 1987) (holding that a factual contention abandoned on appeal will not be reviewed).
Doolittle argues that the Defendants’ nondisclosure of the man standing on the porch, whom
Doolittle asserts would have testified to the fact that no drug transaction occurred, creates a genuine
issue of fact. Doolittle mistakenly relies on the dissent in Celotex, 477 U.S. at 332-33 (Brennan J.
dissenting), for the proposition that if the moving party overlooked a witness that could provide
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 00-10027
(Summary Calendar) _________________
TOMMY L. DOOLITTLE,
Plaintiff-Appellant,
versus
STEPHEN BAUGH, Dallas Police Officer; TROY KLINGLESMITH, Dallas Police Officer;
Defendants-Appellees.
Appeal from the United States District Court For the Northern District of Texas Dist. Ct. No. 3: 98-CV-2463-G
November 3, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Tommy L. Doolittle appeals the summary judgment in favor of Defendants, Officers Stephen
Baugh and Troy Klinglesmith. Finding that the district court properly granted summary judgment,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. we now affirm.
Officers Baugh and Klinglesmith were patrolling in the 1400 block of Fitzhugh when they saw
a man standing on the porch of a known drug house. The uniformed officers stopped their marked
patrol car and walked towards the man, who froze upon seeing them. Officer Baugh saw what he
thought to be a plastic bag handed through the door to the man on the porch. Officer Baugh grabbed
the hand of the man at the door, Tommy L. Doolittle. Doolittle pulled his hand away and retreated
into the house. Officer Baugh pursued him into the house. Doolittle ran into the bathroom and he
proceeded to pull the door in as Officer Baugh attempted to pull the door open. Officer Baugh got
the door open only to find Doolittle pointing a gun at his head. Officer Baugh slammed the door shut
and ran out of the house. Doolittle fired several shots after the officers, who returned fire. Doolittle
brought suit under 18 U.S.C. §1983 alleging violations of his Fourth Amendment rights.
The district court granted the motion for summary judgment. As a threshold matter, the
district court examined the Defendants’ qualified immunity defense. It found that Doolittle failed to
allege particularized facts that are required t o defeat a summary judgment motion grounded in
qualified immunity. Instead, Doolittle made conclusory allegations that the defendants entered his
home without probable cause. With regard to Doolittle’s claim of excessive force, the district court
found that Doolittle failed to allege facts to show that a reasonable officer would have found Officer
Baugh’s actions unjustified. The district court noted that, like his motion, Doolittle’s affidavits
contained only conclusory statements, which were insufficient to overcome the qualified immunity
claim.
Summary judgment is proper if the movant demonstrates that there are no genuine issues of
material fact. See Duckett v. City of Cedar Park, 950 F.2d 272, 275 (5th Cir. 1992). On appeal from
-2- grant of summary judgment, we review the record de novo. We view the evidence in the light most
favorable to the nonmoving party below, here Doolittle. See id. The officers are entitled to a
judgment as a matter of law if Doolittle fails to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof. See Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(c). If the defendants
have shown the absence of genuine issues of material facts, Doolittle must “designate specific facts
showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). In order to meet this burden, the facts must be more than conclusory allegations. See id.
With regard to the Defendants’ qualified immunity defense, we must first inquire as to
whether Doolittle has alleged the violation of a clearly established constitutional right. See Siegert
v. Gilley, 500 U.S. 226, 232,111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Duckett, 950 F.2d at
276-77. Even if we find that Doolittle has alleged such a violation, qualified immunity shields public
officials from civil liability so long as “their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Druckett, 950 F.2d at 279 quoting Anderson v.
Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, (1987). Or put another way, we look at the objective
legal reasonableness of the officers’ actions. See Druckett, 950 F.2d at 280. Where a qualified
immunity defense has been asserted, the plaintiff faces a heightened pleading requirement. The
plaintiff must plead with particularity the basis for defeating that affirmative defense. See Elliot v.
Perez, 751 F.2d 1472, 1473 (5t h Cir. 1985). To plead with particularity, the plaintiff must assert
more than mere conclusions. See Schultea v. Wood, 47 F.3d 1427, 1433-434 (5th Cir. 1995)
Doolittle appeals the summary judgment on two grounds. First, he asserts that there are
-3- genuine issues of material fact. Doolittle now contends for the first time that the officers had
determined that no drug transaction had taken place before Officer Baugh grabbed Doolittle’s hand.
Because he did not raise this factual contention at the district court, we cannot review it on appeal.
See Varnado v. Lynaugh, 920 F.2d 320, 321 (5t h Cir. 1991) (holding that plaintiff waived factual
contentions not raised at the district court). Doolittle argues that the hand drawn map submitted to
the court raises issues of material fact. Assuming arguendo that this is evidence competent for
summary judgment, this map verifies the officers’ version of events. The map raises only one potential
issue of material fact: Doolittle’s position in the house when the officers approached. The map
shows Doolittle as being in his living room rather than at the door. Doolittle, however, now concedes
that he was at the front door when the officers approached rather than in his living room. Because
he has now abandoned this contention, we will not address it. See Brinkman v. Abner, 813 F.2d 744,
748 (5th Cir. 1987) (holding that a factual contention abandoned on appeal will not be reviewed).
Doolittle argues that the Defendants’ nondisclosure of the man standing on the porch, whom
Doolittle asserts would have testified to the fact that no drug transaction occurred, creates a genuine
issue of fact. Doolittle mistakenly relies on the dissent in Celotex, 477 U.S. at 332-33 (Brennan J.
dissenting), for the proposition that if the moving party overlooked a witness that could provide
favorable testimony for the nonmoving party, the court could not grant summary judgment. In
context, the dissent was discussing the nonmoving party’s ability to call attention to evidence ignored
by the movant and, thereby, force the movant to address that evidence.1 Moreover, it was Doolittle’s
burden to present evidence to refute the summary judgment motion, not the Defendants’ burden.
1 We note with some curiosity that Doolittle makes this claim regarding the need for the disclosure of this witness and, yet, he alleges that the witness was a neighbor, not a stranger. If the latter were true, it would seem to render disclosure wholly unnecessary.
-4- Finally, Doolittle’s contentions regarding the officers yelling at him or breaking down his door are
irrelevant to whether or not the officers’ had probable cause and, therefore, are not material facts.
Thus, Doolittle’s claim that there were issues of material fact is without merit.
Doolittle also contends that the district court erred in granting qualified immunity to the
defendants. Doolittle challenges the district court’s determination that he failed to meet the
heightened pleading requirement to withstand summary judgment on a qualified immunity defense.
Doolittle incorrectly asserts that this finding was a credibility determination. In a suit brought against
an individual officer, we have held that the plaintiff faces a heightened pleading requirement. See
Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). He must state with particularity in his complaint
the facts underpinning his allegation of a constitutional violation. As we have said, this standard
“requires more than conclusory assertions. It requires claims of specific conduct and actions giving
rise to a constitutional violation.” Id. Here, Doolittle made only the bald assertion that the
defendants lacked probable cause to stop or to enter his home. He made that same assertion, without
supporting factual allegations, in his complaint, the questionnaire administered by the magistrate
judge, and his Fed. R. Civ. P. 7 responses to the Defendants’ affirmative defense of qualified
immunity. Each one of these pleadings provided Doolittle with the opportunity to allege the facts
which led him to believe that the officers stopped and entered his house without probable cause.2
Thus, the district court correctly found that Doolittle failed to meet this pleading requirement.
2 Doolittle did advance more particularized facts to support his allegation that the officers entered his house without the existence of exigent circumstances in his Brief in Opposition to the Motion for Summary Judgment. However, he provided no supporting affidavits for the allegations contained in his brief. In the absence of such supporting evidence, these allegations come too late. See Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir. 1985) (requiring that the “plaintiff’s complaint state with factual detail and particularity the basis for the claim” and refutes the claim of qualified immunity); Schultea v. Wood, 47 F.3d1427, 1433 (5th Cir. 1995) (acknowledging the role that a Rule 7 reply has in pleading with particularity the facts refuting a qualified immunity defense).
-5- Lastly, Doolittle contends that the district court erred in granting qualified immunity on his
claims of excessive force. “It is well settled that if a law enforcement officer uses excessive force in
the course of making an arrest, the Fourth Amendment guarantee against unreasonable search and
seizure is implicated.” Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994). In order to make
out claim of excessive force, the plaint iff must show that he was injured, that the injury resulted
directly and only from force that was clearly excessive, and that the excessiveness was clearly
unreasonable. See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999); Heitschmidt v. City of
Houston, 161 F.3d 834, 836 (5th Cir. 1998); see also Harper v. Harris County, 21 F.3d 597, 600
(5th Cir. 1994). Doolittle has failed to show that the officers’ actions in entering his home and in
slamming a door in his face, when he pointed a gun at the officer, constituted an excessive use of
force or that their actions were objectively unreasonable. See Dunn v. Denk, 79 F.3d 401, 403 (5th
Cir. 1996) (en banc). The district court’s judgment is therefore AFFIRMED.
-6-