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/wpdyn/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/wpdyn/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-ofdiscretion 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 Nickels, 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, Nickels 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, Nickels 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 Nickels’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 Nickels’s particular 

involvement in this litigation. Nor, however, is there any 

indication of measures the government may have taken to 
10 

isolate Nickels 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 Nickels “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 

Nickels 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. 

Nickels’s employment with the District government, it 

instituted measures to separate Mr. Nickels 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 Nickels 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 Nickels 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 Nickels 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. 

Nickels 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 Nickels 

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.