ERIC HERRION ,

Plaintif f , v. CHILDREN’S HOS P ITAL NATIONAL MEDICAL CENTER , et al. , Defendants

. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 10-00254 ( CKK)

MEMORAN DUM OP INION (May 24, 2011) Plaintiff Eric He rrion (“ Her rion”) c ommenced this ac tion ag ainst Children’s National Medica l Center (“ Children’s National” ), sued he re unde r the name Children’s Hospital National Medica l Center, and thr ee se curity office rs in its employ

— Emerson Ande rson, J ason Gre en, and Calvin Whit e (the “Secur ity Offic ers” ; toge ther with Children’s Na tional, “Def

endants” ) — alleg ing that he was attacked, be aten, a nd restra ined by

the Secur ity

Offic ers while visiting his sister at Children’s National in September 2007. I n his [ 6] Amended Complaint, Herrion asse rts two claims ag ainst the Security Offic ers — e ach of

whom has bee n commissioned as a spec ial police off icer by the Mayor of the D istrict of Columbia — under Sec tion 1 of the Ku Klux Act 1 of 1871, Rev. Stat. § 1979, as ame nded, 42 U.S.C. § 1983 (“Sec tion 1983”), as we ll as a common law cla im for malicious prosec ution ag ainst both Chil dren’ s National and the Security Offic ers.

In the District of Columbia, specia l police offic ers “ are commissioned for the spe cial 1 purpose of

protec ting pr operty

on the pre mises of the employ er.” Limpuangthip v. United States , 932 A.2d 1137, 1142 (D.C. 2007) ( internal quotation marks omitted). The employ er must apply for the c ommissi on, and “[o]nce a spe cial police of fice r ce ases to wor

k for his or he r employer, that [special police off

icer ] l oses the appointment.” Moorehe ad v. District of Columbia , 747 A.2d 138, 144 (D.C. 2000).Presently

befor e the Court is Def

endants’ [7] Mot ion for Summary J udg ment. Invoking the doctrine of res judicata , Def endants a rgue that He rrion is prec luded from se ekingany relief in this action in light of a pr ior ac tion he broug ht ag ainst Children’s National in the Superior Court for the D istrict of Columbia. The Court ag ree s. There fore , upon a sea rchingrevie w of the parties’ submissi ons, the rele vant authorities, and the rec ord as a whole, the Court shall g rant Def endants’ motion and dismiss this action in it s entirety

. I. P RELIMINARY M ATTERS Preliminarily , the Court pauses to make two overa rchingobservations about the nature of Def endants’ motion and He rrion’s opposition to that moti on. First, althoug h sty led in the alter native as a

motion to di smiss for failure to state a c laim pursuant to Rule 12(b)( 6) of the F eder al Rules of Civil P roce dure, D efe ndants’ motion turns upon consideration of materials that a re outside the sc ope of the pleading s. Indeed, in the c ourse of brief ing the motion, both parties effe ctively treat the motion as one for summar y judgme nt. For his part, Her

rion does not sug g est either that he has be en deprived “a rea sonable opportunity to present a ll the material that is per tinent to the motion,” Fed. R. Civ. P. 12(d), or that he “ca nnot present f

acts e ssential to justi fy

[hi s] oppos ition,” Fed. R. Civ. P. 56(d). Ther efor e, the Court shall treat the motion solely as one f or summary

judgme nt. Second, the United States D istrict Court for the District of Columbia has supplemente d Rule 56 of the F eder al Rules of Civil P roce dure w ith L ocal Civil Rule 7(h)(1), which re quires that eac h party

submitt ing a

motion for summary

judgme nt attach a

statement of mate rial fa cts for whic h that party

contends ther e is no g enuine dispute. The party opposing the motion mus t, in turn, submit a responsive statement e numerating a ll material fa cts which the pa rty contends a

re
2g enuinely

disputed. SeeL CvR 7(h)(1). B oth the moving pa rty ’s initial statement and the opposing pa

rty ’s re sponsive statement must be base d on “re fer ence s to the parts of the r ecor d relied on to support the state ment.” Id. This well-re asoned r ule “plac es the burde n on the par ties and their c ounsel, who ar e most familiar with the litigation and the re cord, to c ry stalliz e for the district court the mate rial fa cts and re levant portions of the r ecor d.” Jack son v. Finnegan, Hende rson, Farabow, Garrett & Dunner , 101 F.3d 145, 151 ( D.C. Cir. 1996). In this case, while Her rion has filed a

responsive state ment, his chosen appr oach f alls short of what is re quired in two materia l respec ts. First, Her rion occ asionally

responds to fa ctual matter s identified by Def endants simply

by char acte rizing them as “ irrele vant and immater ial.” SeePl.’s Response to Def s.’ Alleg ed Stmt. of Undisputed Material F acts, ECF No. [8] , ¶¶ 8, 16, 21- 26, 28. Such a response is patently

insufficient to controve rt the truth of the ma tters identified. To the e x tent these matter s turn out to be materia l to the resolution of this moti on, Her rion has fa iled to supply a basis for

treating them a s controver ted. Second, while H err ion sugg ests that he disputes ce rtain fac tual matters identified by Def endants, he repe atedly

does so without citing to any competent evidenc e in the re cord. See id. ¶¶ 10- 11, 14, 16. Howeve r, a r esponsive stateme nt must i nclude specific “re fer ence s to the parts of the r ecor d relied on to support the state ment.” L CvR 7(h)(1). 2 In eac h of these r espec ts, Herr ion has failed to discha rg e his burden unde r the L ocal Rules of this Court. There fore , in an exercise of its discretion, the Court shall assume that the uncontr overte d fac ts identified by

Def endants in their state ment are admitted for pur poses of re solving the

In this way , L ocal Civil Rule 7(h)(1) a ligns with the re latively rec ent amendme nts to 2 Rule 56 of the F eder al Rules of Civil P roce dure. SeeFe d. R. Civ. P . 56(c) (1) & (3) ( requiring parties to “c it[ e] to particular pa rts of mater ials in the rec ord,” a nd providing that “[t] he cour t need c onsider only

the cited mate rials.”)

. 3pendingmotion. II. BACKG ROUND

This action turns on eve nts that are a lleg ed to have transpire d on September 17, 2007. SeeAm. Compl., Docket No. [6] , ¶ 8. B riefly stated, He rrion alleg es that, while he was visiting his sist er at Chil dren’ s National on that date , he wa s attacke d, beate n, and re strained by the Security Offic ers, who subse quently fabr icated a

char g e of a ssault ag ainst him in order to “c over up” their a lleg ed wr ong ful conduc t. See id. ¶¶ 9- 10, 22. A. Herrion B rings S uit in th e Superior Cou rt for the Distri ct of Colum bia Significa ntly , this is not the first time that Her rion has brought suit i n connec tion with these a lleg ed eve nts. On September 17, 2008, He rrion commenc ed an a ction ag ainst Children’s National in the Superior Court f or the District of Columbia (the “ Superior Court ac tion”). De fs.’ Stmt . of Undisputed Mate rial F acts (“ Def s.’ Stmt.”), ECF No. [7] , ¶ 1. In that action, He rrion

asser ted claims ag ainst Children’s National for assault and battery

and fa lse arr est. Id. ¶ 3. B oth 3 claims wer e pre dicated upon the same seque nce of events that a lleg edly

occur red when He rrion went to Children’s National to visi t his sis ter on Septembe r 17, 2007. L ike her e, the ope rative a lleg ations in the Superior Court ac tion were as follows:

• Her

rion was a sked to leave the room whe re his sister wa s rec eivingtreatment;

• Despite c omply ing w ith the reque st, he was f ollowed and ha

rasse d as he w as leavingthe building;

• Once outside, the Security Offic ers attacked a

nd restra ined him;

• Her

rion was take n inside the building by the Secur ity

Offic ers a

nd held in a room;

• Her

rion was ha

rasse d while the police w ere called to the sc ene; a nd A third claim, immaterial to the r esolution of this mot ion, was re solved prior to trial. 3 4• The Sec urity Offic ers pr ovided the police w ith manufac tured e vidence conce rning the eve nts that transpired. Def s.’ Stmt. ¶ 5 & Ex . 1 ¶¶ 5- 7. In the Superior Court ac tion, Herrion br oug ht suit aga inst Children’s National — the only named de fenda

nt in that action — on the theory that Children’s National wa s vicariously

liable for the acts of the Security Offic ers in its employ

. Id. ¶¶ 5- 6 & Ex . 1 ¶¶ 8- 9. Children’s National a

nswere d the complaint and the pa rties proc eede d to conduct discovery . Def

s.’ Stmt. ¶¶ 7-8. Eleven months bef ore the trial beg an, Children’s National identified the thre e Secur ity Offic ers involved in the a ltercation by name a nd produce d a copy

of the sec urity

came ra f ootag e re cordingthe eve nts that served a s the basis for the action. Id. ¶¶ 8- 9 & E x . 4 at 4, 6-8. A five- day

jury trial beg an on January

25, 2010. Def

s.’ Stmt. ¶ 15. The two claims at issue at trial we re H err ion’s claims for a ssault and batter y and fa lse arr est. Id. Her rion introduced the secur ity

came ra f ootag e into evidenc e. Id. ¶ 16. On F ebrua ry 2, 2010, the jury returne d a split verdict, findingin favor of Children’s National on He rrion’s c laim for fa lse arr est and in Her

rion’s fa vor on his claim for a ssault and batter y . Id. ¶ 17 & Ex . 10 at 1. Her rion was

awa rded $30,000 in c ompensatory damag es. Id. ¶ 17 & Ex . 10 at 2. The Super ior Court entere d a fina l judgment that same day

. Id. ¶ 18 & Ex . 11. Children’s National’ s subsequent motions seekingrelief

from the f

inal judgme nt have a ll been denie d. Id. ¶¶ 19- 20. B. Herrion B rings S uit in Thi s Cour t On Fe bruar

y 18, 2010, less than two wee ks after the jury rende red its ver dict in the Superior Court ac tion, Herrion c ommenced this ac tion, naming both Children’s National and the Security Offic ers a s defe ndants. SeeCompl., Docket No. [1] . On Marc h 30, 2010, Def endants 5moved for summar y judgme nt on the g round that the doc trine of res judicata prec ludes Her rion from sec uringrelief

in this action. SeeDef

s.’ Mot. for Summ. J ., Docke t No. [3]

. On April 19, 2010, He rrion re sponded by amendinghis Compl aint. SeeAm. Compl., Docke t No. [6] . L ike the pre vious iteration, Her rion’s Amende d Complaint rests on the same fac tual underpinningas the Superior Court action — that is, the eve nts that alleg edly transpire d on September 17, 2007. See id. ¶¶ 8- 10, 14. In connec tion with thos e alleg ed eve nts, Herr ion

asser ts three c laims in his Amended Complaint: two claims ag ainst the Security Offic ers a

rising under Sec tion 1983, the first predicated on alleg ations of excessive for ce ( Count I ) and the second pr edicated on alleg ations that the Security Offic ers de liberate ly

made f alse repr esentations to t he Metropolitan Police De partment (Count I I ); and a third claim ag ainst both Children’s National a

nd the Secur ity

Offic ers f

or malicious prosec ution (Count I I I ). See id. ¶¶ 15-24. In the Amende d Complaint, Herrion purpor ts to be suing the Sec urity Offic ers in both their “of ficial” and “individual” c apac ities. See id. ¶¶ 5- 7. So far a s fac tual alleg ations g o, the only truly materia l chang e in Her

rion’s Amende d Complaint has nothing to do with the underly ing c onduct at issue. Rather , Her rion sets forth a handful of a lleg ations conce rningthe Superior Court ac tion its elf. He expressly acknow ledg es that he filed a

suit in t he Superior Court “ [a] s a re sult of” the eve nts of September 17, 2007, that the ac tion “went to trial,” a nd that a “jur

y returne d a ver dict of $30,000 on [his] claim for a ssault and batter y and in favor of [Children’s National] on the claim for f alse a rre st.” Am. Compl. ¶ 11. Appar ently

by way of explanation for this action, He rrion proc eeds to a lleg e that the “ violations of the [his] rig hts could not be supported with objec tive evidenc e nor me et the minimum standard f or adva ncingclaims associated with what happe ned in the sec urity office until two day s 6befor e the Super ior Court trial was sche duled to beg in when the puzzle . . . was finally solved and its secr ets wer e re veale d.” Id. ¶ 13. On April 27, 2010, the Court denie d Def endants’ f irst motion for summary

judgme nt without prejudice to re -file a fter ta iloring it to speak to the A mended Complaint. SeeMin. Order (Apr. 27, 2010) . On May 11, 2010, Def

endants filed this motion. See Def s.’ Mem. of P. & A. in Supp. of its [ sic] Mot . to Dismiss and/or Mot. for Summ. J ., ECF No. [7]. On May 25, 2010, Her rion filed an opposition. SeePl.’s Mem. of P. & A. in Opp’ n to Defs.’ Mot. for Summ. J

. (“Pl.’s Opp’n” ), ECF N o. [8] . On J une 1, 2010, De fenda nts filed a re ply

. SeeDef s.’ Reply to Pl.’s Opp’n to Def.’ s [s ic] Mot. for Summ . J ., ECF No. [9]. On April 7, 2011, af

ter re viewingthe par

ties’ initial briefing , the Court issued a minute order reque sting fur

ther c larifica

tion as to the nature of

Her rion’s cla ims in t his action. SeeMin. Orde r (Apr . 7, 2011). The Court se t forth its understandingthat Her rion’s two cla ims ag ainst the Security Offic ers we re ba sed on the c ontention that the Security Offic ers a

re liable under Sec tion 1983 for willfully

and maliciously

beatingHer

rion and de liberate ly

makingfalse r epre sentations to the Metropolitan Police Depa rtment in their ca

pacity as sec urity

guards in Children’s National’s e mploy

. See id. The Court direc ted Her rion to file a notice indicatingwhether the Court’s understandingof his claims was c orre ct and, if a ppropriate , identifying whether he intended to sue the Sec urity Offic ers in a dif

fer ent ca pacity or for additional conduct. See id. Purporting to r espond to the Court’s direc tive, Her rion filed a “ notice of c laims” on April 14, 2011. SeeNotice of

Pl.’s Cl aim in Resp. to the Court’s Order of April 7, 2011 (“ Pl.’s Notice of Claims”), ECF N o. [10] . There in, Herr ion repre sented, without furthe r ela boration, that his two claims ag ainst the Security Offic ers r est on the conte ntion that the Security Offic ers a

re
7“liable in their ind ividu al capacities actingunder c olor of law.” Id. at 1 (e mphasis in origina l).

As the Court observe d in a furthe r minute order , Her rion’s re prese ntation made it clea r that he has not broug ht suit aga inst the Security Offic ers in their “ officia l” ca pacities, de spite the use of such languag e in the Amende d Complaint. SeeMin. Order (Apr. 15, 2011)

. Unfortunately , Her

rion’s terse “notice of

claims” wa s otherwise unhe lpful in clarify ing the pre cise c ontours of his claims ag ainst the Security Offic ers, a

nd the Court there fore direc ted the par ties to eng ag e in a f

urther r ound of brief

ing f ocusingon the question of the c apac ity in which the Sec urity

Offic ers ha

ve bee n sued in this action and the implications for D efe ndants’ res judicata argument. SeeMin. Order (Apr. 15, 2011) . On April 25, 2011, De fenda nts filed their supplemental memor andum. SeeDef s.’ Suppl. Mem. of P. & A. in Supp. of Their Mot. to Dismiss and/or Mot. for Summ. J ., ECF No. [12]. On May 9, 2011, Her

rion filed his supplemental opposition. See Pl.’s Suppl . Mem. of P. & A . in Opp’n to Def s.’ Mot. to Dismis s and/or for Summ. J . (“Pl.’s Suppl. Opp’n”) , ECF No. [13]

. On May 16, 2011, Def

endants filed their supplemental r eply

. SeeDef s.’ Reply to Pl.’s Opp’n to Suppl . Mem. of P. & A . in Supp. of Their Mot. to Dismiss and/or for Summ. J ., ECF No. [14]. The moti on is now fully briefe d and ripe for a dec ision. III. LE GA L ST ANDAR D Summary judgme nt is appropriate wher e “the movant shows that there is no ge nuine dispute as to any

materia l fac t and [that it ] . . . i s entitled to judgment a s a matter of law.” F ed. R. Civ. P . 56(a) . The mer e existence of some fac tual dispute is insufficient on its own to bar summary judgme nt; the dispute must pertain to a “mate rial” f act, a nd there fore “[o] nly

disputes over f acts that mig ht affe ct the outcome of the suit under the g overninglaw will properly

8prec lude the entr y of summary

judgme nt.” Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). Nor

may summary judgme nt be avoided ba sed on just any disag ree ment as to the rele vant fa cts; the dispute must be “g enuine,” meaningthat there must be sufficient a dmissibl e evidenc e for

a re asonable trier of

fac t to find for the non-mova nt. Id. In order to establish that a fa ct is or ca nnot be g enuinely

disputed, a par

ty must (a) c ite to specific parts of the rec ord — includingdeposition testimony , documentar y evidenc e, af

fidavits or dec larations, or other compe tent evidenc e — in support of its position, or (b) demonstrate that the mater ials relied upon by the opposing party

do not actually

establish the abse nce or

prese nce of a g enuine dispute. F ed. R. Civ. P. 56(c)(1). Conc lusory asser tions offere d without any fac tual basis in the rec ord ca

nnot cre ate a

g enuine dispute suff

icient to survive summary judgme nt. Ass’n of Flight Attendants-CW A v. U.S. D ep’t of Transp. , 564 F.3d 462, 465- 66 (D.C. Cir. 2009). Moreove r, whe re “ a par

ty fails to proper ly

support an asse rtion of fa ct or fa ils to properly addre ss another party ’s asser

tion of fac t,” the district cour t may “conside r the fa ct undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When fac ed with a motion for summary judgme nt, the district court may not make

cre dibilit y

deter minations or weig h the evidenc e; instead, the e vidence must be analy zed in the light most favor able to the non- movant, with all justi fiable infe renc es dra wn in his favor. Liberty Lobby , 477 U.S. at 255. I f mater ial fac ts are g enuinely in dispute, or undisputed fac ts are susceptible to diverg ent yet justifiable infer ence s, summary judgme nt is inappropriate. Moore v

. Hartman , 571 F.3d 62, 66 ( D.C. Cir. 2009). In the end, the district c ourt’s task is to determine “whe ther the e vidence prese nts a sufficie nt disag ree ment to require submissi on to a jury or whether it is so one-sided that one par ty must prevail as a

matter of la

w.” Liberty Lobby , 477

9U.S. at 251-52. In this reg ard, the non-movant must “do more tha n simply show that there is some metaphy sical doubt as to the material fac ts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986); “[i] f the e vidence is merely colora ble, or is not sufficie ntly

probative, summar

y judgme nt may

be g rante d,” Liberty Lobby , 477 U.S. at 249-50 (interna l citations omit ted). IV. DISCUSSIO N Her rion’s plea dings a

re ha rdly the model of a

rtful dra fting . In the short time that this action has be en pending , Her rion has aba

ndoned some c laims and asser ted new one s in their place . As a re sult, the Court shall begin its discussion by delineatingthe contours of this action. There afte r, the Court shall turn to the hea rt of the pa

rties’ dispute — name ly , whether Her rion’s claims ag ainst the Security Offic ers a

re ba rre d under the doctrine of res judicata in light of the prior ac tion in the Superior Court for the District of Columbi a. A. The Scope of T

his A ction Is C

onfined to Herrion ’s Section 1983 Claim s Again st th e Security Off icers in Their In dividual C apacities Her rion asser ts three c laims in his Amended Complaint: two claims ag ainst the Security Offic ers a rising unde r Section 1983, the fir st predicated on alleg ations of excessive for ce ( Count I ) and the second pr edica

ted on alleg ations that the Security Offic ers de liberate ly

made f alse repr esentations to t he Metropolitan Police De partment (Count I I ); and a third claim ag ainst both Children’s National a

nd the Secur ity

Offic ers f

or malicious prosec ution (Count I I I ). SeeAm. Compl. ¶¶ 15-24. In the Amende d Complaint, Herrion purpor ts to be suing the Sec urity Offic ers in both their “off

icial” a nd “individual” ca

pacities. See id. ¶¶ 5- 7.

101. Herr ion Has Aband oned His Malicious Pr osecution Claim Against Child ren’s Nat ional an d the Security Off icer s Her rion’s Amende d Complaint i ncludes a claim for ma licious prosecution ag ainst both Children’s National a

nd the Secur ity

Offic ers ( Count I I I ). SeeAm. Compl. ¶¶ 21-24. Howe ver, in oppositi on to this m otion, Herrion state s that he “doe s not intend to pursue the cla im for malicious prosec ution and there fore conce des that this count of his amende d complaint should be dismiss ed.” Pl.’s Opp’ n at 1 n.1. B ased on this explicit concession, the Court shall g rant Def endants’ motion as c oncede d insofar a s it seeks dismissal of Herr ion’s claim for ma licious prosec ution ag ainst Children’s National a nd the Secur ity

Offic ers. Significa ntly , Her rion’s malicious prosec ution claim is the only claim that has be en
asser ted ag ainst Children’s National in this action; both of Her rion’s Section 1983 cla ims are direc ted exclusively

towards the Sec urity

Offic ers. SeeAm. Compl. ¶¶ 15-24. Given that

4 Her rion has conc eded that his malicious prosecution claim must be dismissed, it foll ows that Children’s National must be dismissed as a de fenda nt.

L est there be any

confusion, the Court pause s to observe that Herr ion could not have 4 asser ted a viable Section 1983 claim ag ainst Children’s National in this action. To the e x tent Her rion would seek to hold Children’s National liable for the a cts alleg edly committed by

the Security Offic ers in the sc ope of the ir employ ment, a private employ er c annot be he ld liable under Sec tion 1983 under a the ory of respondeat superior

for the c onstitut ional torts committed by its employ ees. See R ojas v. Alexande r’s Dep’ t Store, Inc. , 924 F.2d 406, 408 ( 2d Cir. 1990), cert. de nied , 502 U.S. 809 (1991). To the e x tent Her rion would seek to hold Children’s National liable for the acts a lleg edly committed by

the Secur ity

Offic ers in their “ officia l” ca pacities a s specia l police offic ers c ommissi oned by the Mayor of the D istrict of Columbia, official-c apac ity suits are tre ated a s suits aga inst the gove rnment itself, Hafer v. M elo , 502 U.S. 21, 25 (1991), meaningthat the District of Columbia — and not Children’s National — would be the true defe ndant for a

ny such cla im. Finally , to the extent Herrion would see k to hold Chi ldren’s National liable unde r Section 1983 for its own acts, see Maniaci v. G eorgetown Univ. , 510 F. Supp. 2d 50, 61-62 (D.D.C. 2007), suc h a cla im could have, a nd should have, be en ra ised in the Superior Court ac tion — in which Chil dren’ s National wa s a name d party — and would ther efor e be bar red by the doctrine of

res judicata

. 112. Herr ion Has Aband oned Any Claims Against the Sec urity Off icer s in Their “Of

fi cial” Capacities In his Amended Complaint, Herr ion purports to bringsuit ag ainst the Security Offic ers in both their “off

icial” a nd “individual” ca

pacities. SeeAm. Compl. ¶¶ 5-7. B eca use the Ame nded Complaint does not specify what is meant by

this somewhat cry

ptic statement, the Court issued 5 a minute orde r re questing further clar ification as to the nature of H err ion’s claims ag ainst the Security Offic ers. SeeMin. Order (Apr. 7, 2011) . Purporting to r espond to the Court’s minute order , Her

rion filed a “ notice of c laims,” in which he r epre sented that his two claims ag ainst the Security Offic ers r est on the conte ntion that the Security Offic ers a

re “ liable in their ind ividu al capacities actingunder c olor of law.” Pl.’s Notice of Claims at 1 (empha sis in original). A s the Court observed in a

further minute order, H err ion’s repr esentation made it clear that he is not pursuingany

claims ag ainst the Security Offic ers in their “ officia l” ca pacities, de spite the use of such languag e in the Amende d Complaint. SeeMin. Order (Apr. 15, 2011) . Ba sed on this expli cit conce ssion, the Court shall gra nt Defe ndants’ motion as conc eded insofa r as it see ks dismiss al of He rrion’s Sec tion 1983 claims ag ainst the Security Offic ers in their “ officia l” capa cities (Counts I

and I I ).

The only

conce ivable “of

ficial” capa city

in which the Secur ity

Offic ers c ould be sued 5 under Sec tion 1983 is t heir c apac ity as spec ial police off

icer s commissioned by

the Mayor of the District of Columbia. SeeD.C. Code § 5-129.02(a ). Howe ver, a s previously observe d, suits ag ainst g overnme nt officials in their “ officia l” ca pacities a re tre ated a s suits aga inst the g overnme nt itself, and Her rion has neve r attempted to bringthe District of Columbia into this action nor a lleg ed a f

actua l basis for sug g esting that the conduc t at issue could be attributed to a municipal policy

or custom. See W

aker v . Brown , 754 F. Supp. 2d 62, 64-65 (D .D.C. 2010) (conc luding that the pla intiff in an offic ial-ca pacity suit failed to eff

ect pr oper se rvice upon the District of Columbia); Atchinson v. District of Columbia , 73 F.3d 418, 422 ( D.C. Cir. 1996) (providingthat a complaint must “include some f actua l basis for the a lleg ation of a municipa l policy or custom”)

. 12As a re sult of Herr ion’s expli cit conce ssions, the only claims that rema in at issue in this action ar e He rrion’s two Sec tion 1983 claims ag ainst the Security Offic ers in their “ individual” capa cities, the first pre dicated on a lleg ations of excessive for ce ( Count I ) and the second predic ated on a lleg ations that the Security Offic ers de liberate ly

made f alse re prese ntations to the Metropolitan Police Depa rtment (Count I I ). The Court sha ll now turn to the task of explaining why Her rion is prec luded from se curingrelief as to these c laims. B. Herrion’s Section 1983 C laim s Again st th e Security Off icers in their In dividual Capacities Are Barred by the Doctrine of Res Judicata Fe dera l courts must acc ord “f ull faith and cr edit” to the judg ments of state c ourts, 28 U.S.C. § 1738, a command that extends with no less force to the judgme nts render ed by the courts of the District of Columbia, Y oungin’s Auto Body v. D istrict of Columbia , __ F. Supp. 2d __, 2011 WL996662, at *3 (D.D .C. Mar. 17, 2011). To pr ovide the re quisite “full faith and

cre dit,” fede ral c ourts must give the judgme nts of other c ourts of compe tent jurisdiction “the same pre clusive ef

fec t as would the issuing c ourt,” Stanton v. District of Columbia Court of Appeals , 127 F.3d 72, 77 ( D.C. Cir. 1997) — in this case, the Super ior Court of the District of Columbi a. The question of whethe r the Superior Court would affor d the judg ment at issue in this

case prec lusive eff

ect turns on the r eac h of the doc trine of res judicata , or cla im preclusion. Under District of Columbia law, the doctrine of res judicata provides that “a valid final 6

Be cause fede ral c ourts are require d to provide state c ourt judg ments “the same full faith 6 and cr edit . . . as they

have by law or usa g e in the cour se of suc h State, Terr itory or Possession,” 28 U.S.C. § 1738, they

apply state res judicata principles, Czarniecki v. City of Chicago , 633 F.3d 545, 548 n.3 ( 7 Cir. 2011). Nonethe less, as it has re peate dly been obse rved that there is no t h materia l differ ence betwee n the law of the District of Columbia and the f eder al common law on this subject, see, e .g. , Stanton , 127 F.3d at 78 n.4, authorities interpre ting the doc trine in either context are pe rsuasive. 13judgme nt on the merits absolutely bars the sa

me par ties from re litigatingthe same c laim in a subsequent proc eeding .” Mamo v . District of Columbia , 934 A.2d 376, 387 (D.C. 2007) ( internal quotation marks omitted), cert. de nied , 552 U.S. 1259 (2008). Specif ically , a subseque nt lawsuit will be barr ed if ther e has be en prior litig ation (i) involving the same c laim or ca use of a ction, (ii) betwee n the par

ties or their privies a

nd (iii) there has bee n a fina l judgment on the me rits, (iv) by

a cour t of compete nt jurisdiction. Porter v. Shah , 606 F.3d 809, 913 ( D.C. Cir. 2010). Provided these four elements a

re me t, the final judg ment “embodies a ll of a par ty ’s rig hts arisingout of the transac tion involved, and a par ty will be fore closed fr om later see king r elief on the basis of issues which mig ht have be en ra ised in the prior a ction.” Parker v . Martin , 905 A.2d 756, 762 (D.C. 2006) (inter

nal quotation marks omitted). In this case, De fenda nts have c arr ied their burde n of establishing that all four ele ments are prese nt. 7 As an initial matter, the f inal two elements — a

final judg ment by

a cour t of compete nt jurisdiction — are not in dispute. The Super ior Court entere d its final judgment on F ebrua ry 2, 2010. Def

s.’ Stmt. ¶ 18 & Ex. 11. C hildren’s National’s subsequent motions for re lief fr om that judgme nt have be en denie d, and the judgment rema ins final and bindingon the par ties. Id. ¶¶ 19-20. Mea

nwhile, Her

rion aff irmatively

invoked the jurisdiction of the Superior Court, secure d relief under that jurisdiction, and has neve r sug g ested that the c ourt’s jurisdiction was in any way defe ctive. As a

result, the question of whe ther the doc trine of res judicata applies in this case turns on whether

there is sufficient identity betwee n the claims and pa rties in the two ac tions.

Be cause res judicata is an aff irmative def

ense, its propone nt bear s the burden of 7 establishing its application to the case at hand. SBC Commc’ns Inc . v. Fe d. Commc’ns Comm’n , 407 F.3d 1223, 1230 ( D.C. Cir. 2005). 141. Identity of Clai m s

The District of Columbia cour ts have a dopted the “tr ansac tional” appr oach to c laims identity , under which a c laim is broadly seen a s all the rig hts the plaintiff may have ha d ag ainst the def endant “ with respec t to all or any part of the transac tion, or series of connec ted transac tions, out of which the ac tion arose.” Stanton , 127 F.3d at 78 (internal quotation mar ks omitted). That is, there is suff icient identity

betwee n claims when the y are based on a

common nucleus of f

act, r eg ardle ss of the leg al theorie s actua lly relied upon by

the plaintiff in the prior litigation. Capitol

Hill Grp. v. Pillsbury, W inthrop, Shaw, Pi ttman, LL C , 569 F.3d 485, 490 (D.C. Cir. 2009). Ge nera lly speaking , the question is whether the claims in the prior a ction and the later action “a rise fr om the same unde rlying tr ansac tion.” Smalls v. United States , 471 F.3d 186, 193 (D.C. Cir. 2006). In this case, ther e is no doubt that the Superior Court ac tion and this action turn upon the same unde rlying c onduct — namely , the eve nts that alleg edly transpire d when He rrion visited his sister at Children’s National on September 17, 2007. I ndeed, the centr al fa ctual alleg ations tender ed by

Her rion in the two ac tions are virtua lly identical: COMP LAINT IN THE SUP ERIOR COURT ACTION AMENDED COM P LAINT IN THIS ACTION “On September 1 7, 2007, the plaintiff was vis iting his minor sister at defe n d a nt’ s [s ic ] Ch ildr en’s Hospital on Michig an Avenue in the District of Columbi a.” D efs.’ Ex . 1 ¶ 5. “On September 17, 2007, the plainti ff was visiti ng his minor si ster at defe ndant Child ren’s Hospital on Michig an Avenue in the District of Columbi a.” A m. Compl . ¶ 8.

15“While there , the plaintiff was asked to

leave the room wher e his s i s t er was being treated. Thoug h in disag ree ment with this reque st, the pl aintiff bega n to leave the hos pital with h i s mother. As he was walking toward the exit , defe ndant’ s ag ents beg an to follow the plai ntiff. As the plaintiff rea ched the door, defe n d ant’s ag ents continued to follow and hara ss the plaintiff.” Def s.’ Ex . 1 ¶ 6. “While there , the plaintiff was asked to leave the room wher e his siste r wa s being treated. Thoug h in disag ree ment with this reque st, the pl aintiff bega n to l eave the hos pital with his mother. As he was walking toward the exit , defe ndant’s age nts beg an t o follow the plaintiff. As the plaintiff rea ched the door, defe ndant’s ag ents continued to fo l low and hara ss the plaintiff.” Am

. Compl. ¶ 9. “While outside of the hosp i t al, sever al of t he defe ndant’s secur ity personne l attacke d the plaintiff, beat the plaintiff, restra ined the plaintiff and took him b ac k into the hospital wher e he was held in a room and re peate dly hara ssed w h i l e a l l e g e d l y u n d e r a r r e s t
. Subs e q u e n tl y , the defe ndant summoned the M etropolitan P olice.” Def s.’ Ex. 1 ¶ 7. “While o utside the hospital, the defe ndants al l ege d l y ar re s t ed the plaintiff for assault on a police office r. At that point, the secur ity offi cer s beat and kicked the plaint i ff and then took the plaintiff into th e secur ity office to awa it the arr ival of the Metropolitan Police Depa

rtment.” Am. Compl. ¶ 10.

“At all times rele vant here in Children’s Hospital was responsible for the actions taken by secur ity personne l relati v e to the p l aintiff here in.” Def s.’ Ex
. 1 ¶ 9. “At all times rele vant here in Children’s

Hospital was responsible for the actions taken b y s ecur ity personne l rela tive to the plaintiff here in.” Am. Compl. ¶ 14.

In fac t, Herr ion acknowle dg es that he br oug ht suit i n the Superior Court “[a]s a result of these a ctions” — i.e. the same c onduct that he is attemptingto challeng e in this action. Am. Compl. ¶ 11. But eve n absent this expli cit conce ssion, it i s beyond cavil that the Super ior Court action and this ac tion share a common nucleus of f

act a nd arise f rom the same unde rlying transac tion. Undeterr ed, He rrion off ers two r ejoinders, ne ither of whic h has any merit. First, He rrion ar g ues that res judicata should not apply in this case bec ause he did not

16actua lly

pursue c erta in claims or leg al theorie s befor e the Super ior Court. SeePl.’s Opp’n at 2- 8 3. The a rgument is entirely

misplaced. It is well-established that res judicata applies re g ardle ss of the c laims or leg al theorie s actua lly relied upon in the e arlier litigation. Nuyen v . Luna , 884 A.2d 650, 658 (D.C. 2005) ( internal quotation marks omitted). Res judicata is “intended to preve nt liti g ation of matters that should have be en raised in a n ear lier suit” just as much as it is intended to pre vent re litigation of matter s that actua lly wer e ra ised. Natural Res. Def. Council v. Envtl. Prot. Agency , 513 F.3d 257, 261 ( D.C. Cir. 2008) (interna l quotation marks omitted; emphasis in orig inal). Consistent with these aims, the doctrine ma y be invoked whe re, a s here , the two ac tions share a

common nucleus of f

act a nd arise f rom the same unde rlying tr ansac tion. Second, He rrion intimates that the leg al theorie s that he intends to pursue in this action “could not be suppor

ted with objective e vidence . . . until two day s befor e the Super ior Court action wa s scheduled to be g in when the puzzle . . . was finally solved and its secr ets wer e
reve aled.” Am. Compl. ¶ 13. As an initial matter, Her rion’s conte ntion that he did not have

cer tain evidenc e at his disposal duringthe Superior Court ac tion is notsupported by the re cord. The purpor

tedly unsolved “puzzl e” r efe renc ed by Her rion is the secur ity

came ra f ootag e of the

Her rion’s ar g ument is that res judicata does not apply here beca

use he did not, as a 8 matter of historica l fac t, pursue ce rtain cla ims or leg al theorie s befor e the Super ior Court — in particula r, a c laim arisingunder Sec tion 1983. He does not appe ar to dispute that if he had pursued a Section 1983 claim, the Superior Court would have bee n able to exerc ise jurisdiction over suc h a cla im. I n any event, it is well-esta

blished that state cour

ts have c oncurr ent jurisdiction over cla ims arising unde r Section 1983. See W oodward & Lothrop v. Hillary , 598 A.2d 1142, 1143 (D.C. 1991) ( plaintiff broug ht Section 1983 claims ag ainst special police office rs and c ommon law claims ag ainst their employer) . Moreove r, res judicata “does not turn on whether

the first cour

t chosen ha d jurisdiction as expansive as a late r one.” Smith v. Horner , 846 F.2d 1521, 1524 ( D.C. Cir. 1988). Rather, “ [a] ll that matters is that [ the] plainti ff . . . ha d the opportunityto liti g ate both cla ims in a court of c ompetent jurisdiction . . . but inst ead c hose to splitthem.” Id. (empha sis in original). 17events tra

nspiring on Septe mber 17, 2007, but that footag e wa s produce d to Herrion in the course of discover

y in the Superior Court ac tion and had bee n in his possession for near ly a y ear befor e the trial beg an. De fs.’ Stmt. ¶¶ 8-9 & Ex . 4 at 4, 6-8. As a matter of f

act, He rrion re lied upon the

secur ity came ra f ootag e in support of his alleg ations, deposed one of the Sec urity Offic ers using the footag e, and introduc ed the f ootag e into evidenc e at tria l. Id. ¶¶ 11, 14, 16 & Ex s. 6-7. The

mere sug g estion that Herr ion may have e ncounter ed some diff iculties in presentingthe sec urity

came ra f ootag e as e vidence at trial ca nnot suffice to evade the Superior Court’s f inal judgme nt. But more to the point, Herrion’ s argument rests upon a c omplete misapprehe nsion as to the g overningleg al standar d. The only rele vant question is whether Her rion was “ awa

re of [hi s] claim[s] at the time of the f irst liti g ation,” Capitol

Hill Group , 569 F.3d at 491, and there is no doubt that Herr ion was aw are of his claims and in fa ct pursued the m before the Superior Court. To the extent Herr ion fee ls that newly discovere d evidenc e somehow r ender s the Superior Court’s final judg ment unjust, he is of course fre e to petition the Superior Court for r elief f rom that judgme nt. The re medy is not a new a ction in this C ourt. The Court conc ludes that there is sufficie nt identity

of cla ims to apply

the doctrine of res judicata in this case. 2. Identity of Part ies The fina l element re quired to invoke res judicata — identity of par ties — is also present. In this case, whe ther ther e is sufficie nt identity betwee n the par

ties to the two actions turns on what sig nificanc e ca

n be dra wn from a

single undisputed fac t — specifica lly , the fa ct that the Security Offic ers we re not named as de fenda nts in the Superior Court action. In this reg ard, le ft larg ely unacknow ledg ed by

Her rion is the established princ iple that the doctrine of res judicata prec ludes relitig ation of cla ims not j ust betwee n the same nominal pa rties, but also their privies.

18Sollars v. Cull y , 904 A.2d 373, 376 (D.C. 2006). Br oadly speaking , “[a] privy

is one [who is] so identified in interest with a pa rty to the former litigation that he or

she re prese nts precise ly

the same le g al rig ht in respec t to the subject matter of the case .” Smith v. Je nkins , 562 A.2d 610, 615 (D.C. 1989). O ne par ticular for m of privity may arise where two parties a re bound by

an ag ency

relationship. Under District of Columbi a law, a

decision on the mer its in a prior ac tion involvi ngthe principa l or the ag ent prec ludes a subseque nt action ag ainst the other pa rty to the ag ency

relationship i f the prior

action

conce rned a

matter within the scope of the a g ency . Major v. Inne r City Prop. Mgmt., Inc. , 653 A.2d 379, 381 (D.C. 1995) ( citing Lober v. Moore , 417 F.2d 714, 718 ( D.C. Cir. 1969); Tamari v. Bac he &Co. (

Lebanon) S.A.L. , 637 F. Supp. 1333, 1341 (N.D . I ll. 1986)). In acc ordanc e with 9 this principle, courts have consistently held that res judicata applies to bar later suits ag ainst the principal or the ag ent wher e a f inal judgme nt has bee n rende red in a prior ac tion involvi ngthe other pa rty to the ag ency

relationship and the two actions share a common nucle us of fa ct. See, e.g. , Evans v. Chase M

anhattan Mortg. Corp. , Civil Action No. 04-2185 ( RMC), 2007 W L 902306, at *6-7 (D .D.C. Mar. 23, 2007); Advantage H ealth Plan, Inc. v . Knight , 139 F. Supp. 2d 108, 111 (D.D.C. 2001); Century Int’l Arms, Ltd. v. Fed. State U nitary Enter. State Corp. ‘Rosvoorouzhe inie’ , 172 F. Supp. 2d 79, 96 (D.D .C. 2001). The District of Columbia is hardly alone in this approa ch to privity betwee n principals 9 and their a g ents. See, e .g. , Saudi Arabia v. Nelson , 507 U.S. 349, 376 (1993) (K ennedy , J ., concur ringin part, dissenting in part); Fiumura v. Fireman’ s Fund Ins. Cos. , 746 F.2d 87, 92 ( 1 st Cir. 1984); Krepps v. Reine r , 377 F. App’ x 65, 68 (2d Cir. 2010); Turner v. Crawford Squar e Apartments III

, L.P. , 449 F.3d 542, 547 n.11 ( 3d Cir. 2006); Lubrizol Corp. v. Exx on Corp. , 871 F.2d 1279, 1288- 89 (5 Cir. 1989); Evans v. P earson Enters., Inc

. , 434 F.3d 839, 850 n.5 ( 6 t h t h Cir. 2006); Lambert v. Conrad , 536 F.2d 1183, 1186 ( 7 Cir. 1976); Spector v . El Ranco, Inc

. , t h 263 F.2d 143, 145 ( 9 Cir. 1959); Pelletier v. Zweifel , 921 F.2d 1465, 1501 ( 11 Cir.), cert. t h t h denied, 502 U.S. 855 (1991). 19In the Superior Court ac tion, Herrion br oug ht suit aga inst Chi ldren’s N ational on the

theory that Children’s National wa s vicariously liable for the actions alleg edly taken by the Security Offic ers in the sc ope of the ir employ ment. Def

s.’ Stmt. ¶¶ 5-6, Ex. 1 ¶¶ 8-9, & Ex . 10. In this action, Herr ion ag ain see ks to secure relief for the a ctions that the Security Offic ers a

re alleg ed to have committed in the scope of the ir employ ment — this ti me, ag ainst the Security Offic ers themse lves. The two a ctions share a common nucle us of fa ct and both turn on the same conduct a lleg edly

taken in the sc ope of the Security Offic ers’ ag ency

rela tionship wit h Children’s National. Indeed, in his Amende d Complaint, Herrion cha rac terizes the Security

Offic ers a s Children’s National’ s ag ents and e x pressly alleg es that they

wer e ac ting within the scope of their employ ment at all times. SeeAm. Compl. ¶¶ 5-7, 9. Under these c ircumstance s, Children’s National and the Security Offic ers a

re in e ffe ct one a

nd the same pa

rty for pur poses of the two actions. As such, unde r the settled law of the District of Columbia, the Sec urity Offic ers a

re entitled to invoke the doctrine of res judicata to prec lude Her rion from sec uringrelief

in this action. 1 0 Her rion tender s two arg

uments in oppositi on, neither of which suff

ices to salvag e this action. In particula

r, He rrion ar gues most force fully that “it has longbeen e stablished that there

Her rion was pr eviously

war ned that the Court wa s “inclined to rule tha t the Security 1 0 Offic ers a re privies to the Superior Court judg ment insofar a s they are beingsued in this action in their ca pacity for a ctions committed within t he scope of their e mploy ment and as se curity

g uards in Chil dren’ s [National’s] employ .” Min. Orde r (Apr . 15, 2011). The Court ne verthe less aff orded H err ion a furthe r opportunity to expl ain why

the Court should not hold that this action is barr ed by res judicata based on that conclusion. Rather tha n takingthe opportunity , Her rion adopted the e rrone ous position t hat “it matters not whe ther one is actingwithin or outside the scope of one’s e mploy

ment.” Pl.’s Suppl. Opp’n at 5. In this action, Herr ion has neve r ar g ued that the Secur ity

Offic ers a

re be ing sue d for a

ny thing other

than conduc t that they

alleg edly committed in the scope of the ir employ ment as sec urity

guards f or Children’s National. Even if he had, the Amended Complaint is devoid of alleg ations that would support such an a rgument. 20is no obligation to join all tortfeasor s . . . in one lawsuit.” Pl.’s Opp’n at 1-2. Whil e that may be

an ac curate statement of the g ener al rule g overningthe joinder of joint tortfea sors in a sing le action, the a

rgument is mispl ace d; a final judg ment still binds the parties a nd all their privies reg ardle ss of whethe r they are joint tortfeasors. As a matter of f

act, the pr imary

authority relied upon by Her rion in makinghis argument is in complete agree ment on this point , providing that the g ener al rule g overningthe joinder of joint tortfea sors does not over ride the pr eclusive e ffe ct to be af forde d judgme nts where multipl e par ties are in privity

. See M

anicki v. Zeilmann , 443 F.3d 922, 926 ( 7 Cir. 2006) (holdingthat a plaintiff ne ed not name joint tortfea sors in a sing le t h suit “unless there is privity amongthose parties, f

or in that eve nt separate suits ag ainst them are treated as the e quivalent of sepa rate suits aga inst the same par ty .”) ( internal c itations omi tted). 1 1 Her rion’s sec ond argument is somewhat difficult to follow. Specific ally , Her rion arg ues that suing a

party in his or her “ individual” capa city under Sec tion 1983 is “completely differ ent” from suingthem in their “off icial” c apac ity . Pl.’s Suppl . Opp’n at 6. The proposition is entirely non-controve rsial. As the Court has a lrea dy observe d, officia l-ca

pacity suits are tre ated a s suits ag ainst the g overnme nt entity itself. See Hafer , 502 U.S. at 25. Meanwhile, individual-capa city suits are just that — suits aga inst indi viduals as individuals. But what sig nificanc e He rrion intends to draw f

rom the proposition is never ma de cle ar. Tr ue, cour ts have he ld that application of the so-c alled “dif

fer ing c apac ities” exception to res judicata means that a g overnme nt official sued in his individual capac ity cannot invoke res judicata wher e ther e has be en a pr ior ac tion

A sec ond authority

cited by Her rion is easily

distinguishable be cause it involved a 1 1 situation where the defe ndants did “not fall within the orthodox categ ories of pr ivies.” Lawl or v. Nat’l Screen Se rv. Corp. , 349 U.S. 322, 329-30 (1955). Athird authority addre ssed not res judicata but the separ ate que stion of nece ssary joinder. See Temple v. Synthes Corp. Ltd. , 498 U.S. 5, 7 (1990). 21ag ainst him in hi s officia l capa city

. See, e .g. , Andrews v. Daw , 201 F.3d 521, 525 ( 4 Cir. 2000). t h But whe n applied to the fa cts of this case , the ar g ument g oes nowhe re. H err ion has aba ndoned his claims ag ainst the Security Offic ers in their of

ficial c apac ities. See supra Part I V.A.2. All that is left is Herr ion’s claims ag ainst the Security Offic ers in their individual ca pacities a nd, in this reg ard, D istrict of Columbia law provides that the Sec urity Offic ers a

re, a s individuals, in privity with Chil dren’ s National as to the judg ment enter ed in the Superior Court a ction beca use that action, like this one, conc erne d a matter within the scope of the ir ag ency . See Major , 653 A.2d at 381. As a

result, the fa ct that the Secur ity Offic ers a

re sue d “individually ” in this action is irreleva nt. Cf. Advantage Health , 139 F. Supp. 2d at 111 n.2. The “diffe ringcapa cities” exception has no bea

ringon this case. In the final a

naly sis, to allow this case to proce ed ag ainst the Security Offic ers would

cre ate a fra mework unde r which a

plaintiff could consc iously desig n a leg al strategy

which would allow him two shots at the same targ et. Consistent with t he under lying a ims of res judicata — a doctrine which is desig ned to promote the f inality of judicial dete rminations, to foster re liance on judicial decisions by

minimi zing the possibility of inconsistent dec isions, to conserve sc arc e judicial resour ces, a

nd to spare a dversa

ries the ve x ation and expense of r edundant litigation — the Court declines the invitation to create such a f rame work he re. An ag g rieve d party should be g iven “but one oppor

tunity ” to sec ure r edre ss for an a lleg ed wr ong . Molovinksy v. Monte rey Coop., Inc. , 689 A.2d 531, 533 (D.C. 1996). The additional secur ity for r ecove ry

of loss provided by the doctrine of vica

rious liability

should not afford a

n injured plaintiff the f

urther option to split hi s claims and litigate succ essively the issues upon which his claims ar e founde d. Where the matter c oncer

ns conduct unde rtake n within the scope of the ag ency , he is ordinar ily in a

22position t o sue both the principa l and the ag ent, and may rea sonably

be expected to do so. In any event, this is the expectation imposed by the law of

the District of Columbia. Her rion has alre ady had his opportunity

to seek re dress for

the eve nts that alleg edly

transpire d on September 17, 2007 in the Superior Court. He w ill not have a “se cond bite at that sa me apple.” Natural Res. De f. Council , 513 F.3d at 261. V. CONCLUSION For the re asons set for

th above, the Court sha ll gr ant Def endants’ [7] Mot ion for Summary J udg ment and dismiss thi s action in its entirety . An appr opriate or der a ccompa nies this memorandum opinion. Date: May

24, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

23