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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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,

(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

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,

,

,

(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.,

(5th

Cir. 1994). In order to meet this burden, the facts must be more than conclusory allegations. See

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,

,

,

(1991); Duckett,

. 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,

quoting Anderson v.

Creighton,

,

, (1987). Or put another way, we look at the objective

legal reasonableness of the officers’ actions. See Druckett,

. 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,

(5t h Cir. 1985). To plead with particularity, the plaintiff must assert

more than mere conclusions. See Schultea v. Wood,

(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,

(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,

(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,

(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,

(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.”

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,

(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,

(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,

(5th Cir. 1999); Heitschmidt v. City of

Houston,

(5th Cir. 1998); see also Harper v. Harris County,

(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,

(5th

Cir. 1996) (en banc). The district court’s judgment is therefore AFFIRMED.

-6-