Ruiz v. Harmon et al

Filing 174

ORDER denying 167 motion for reconsideration. Signed by Judge Kristine G. Baker on 7/10/2020. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
TONY M. RUIZ,
ADC #157474
v.

PLAINTIFF
Case No. 1:18-cv-00025-KGB-JTK

ZACHERY HARMON, et al.

DEFENDANTS
ORDER

Before the Court is separate defendant Lieutenant Robert Robins’ motion for
reconsideration (Dkt. No. 167). Plaintiff Tony M. Ruiz filed a response (Dkt. No. 169), and
Lieutenant Robins filed a reply (Dkt. No. 171). For the following reasons, the Court denies
Lieutenant Robins’ motion for reconsideration (Dkt. No. 167).
I.

Background

Mr. Ruiz initiated this action on April 11, 2018, against several defendants (Dkt. No. 2).
Four of these defendants were terminated from this action by Order of this Court on June 25, 2018
(Dkt. No. 15). That Order left three defendants in this action: Corporal Zachary Harmon, Sergeant
Richard Fry, and Lieutenant Robins (Dkt. Nos. 2; 28; 56). Mr. Ruiz alleged claims of excessive
force, assault and battery, and intentional infliction of emotional distress against defendants
Corporal Harmon, Sergeant Fry, and Lieutenant Robins, and Mr. Ruiz later supplemented his
complaint to add a failure to protect allegation against Corporal Harmon and Lieutenant Robins
(Dkt. Nos. 2; 56). Specifically, Mr. Ruiz alleges that an incident occurred on June 21, 2017, during
which Sergeant Fry and Corporal Harmon sprayed him with mace without warning or provocation,
and that Sergeant Fry struck Mr. Ruiz with a closed fist on more than one occasion (Dkt. No. 2, at
7-9). Mr. Ruiz further alleges that Lieutenant Robins held him to the ground during that time (Id.,
at 8).

On November 5, 2018, Mr. Ruiz filed a first motion for summary judgment (Dkt. No. 29),
and defendants responded in opposition (Dkt. No. 40). On November 20, 2018, United States
Magistrate Judge Jerome T. Kearney submitted the first Proposed Findings and Recommendations
recommending that Mr. Ruiz’s motion for summary judgment be denied (Dkt. No. 51). Mr. Ruiz
submitted untimely objections which the Court chose to consider (Dkt. No. 85). On April 8, 2019,
defendants filed a motion for summary judgment (Dkt. No. 103), and Mr. Ruiz responded in
opposition (Dkt. No. 116). On May 15, 2019, Mr. Ruiz filed a second motion for summary
judgment (Dkt. No. 129), and defendants responded in opposition (Dkt. No. 132). On June 24,
2019, Judge Kearney submitted the second Proposed Findings and Recommendations
recommending that defendants’ motion for summary judgment be granted, in part, and denied, in
part, and that Mr. Ruiz’s second motion for summary judgment be denied (Dkt. No. 141). Of
relevance here, Judge Kearney recommended that defendants’ motion for summary judgment be
granted, in part, as to Mr. Ruiz’s monetary claims against them in their official capacities; Mr.
Ruiz’s monetary and injunctive relief claims against them based on his loss of parole eligibility;
Mr. Ruiz’s failure to protect claims against Corporal Harmon and Lieutenant Robins; and Mr.
Ruiz’s excessive force claim against Lieutenant Robins (Dkt. No. 141, at 16-17). Judge Kearney
recommended that defendants’ motion for summary judgment be denied without prejudice as to
Mr. Ruiz’s excessive force claims against Corporal Harmon and Sergeant Fry and Mr. Ruiz’s state
law claims (Id., at 17). Mr. Ruiz filed objections (Dkt. No. 143), and Corporal Harmon and
Sergeant Fry filed partial objections (Dkt. No. 144). Lieutenant Robins did not file any objections.
On August 28, 2019, the Court entered an Order adopting the two Proposed Findings and
Recommendations as its findings in all respects (Dkt. Nos. 51; 141; 146). The Court granted
summary judgment in defendants’ favor on Mr. Ruiz’s monetary claims against defendants in their

2

official capacities, Mr. Ruiz’s monetary and injunctive relief claims against defendants based on
his loss of parole eligibility, Mr. Ruiz’s failure to protect claims against Lieutenant Robins and
Corporal Harmon, and Mr. Ruiz’s excessive force claim against Lieutenant Robins (Dkt. No. 146,
at 8). The Court denied defendants’ motion for summary judgment as to Mr. Ruiz’s excessive
force claims against Corporal Harmon and Sergeant Fry and Mr. Ruiz’s state law claims against
all defendants (Id.).
On June 24, 2020, Lieutenant Robins filed the instant motion (Dkt. No. 167).
II.

Legal Standard

District courts have the inherent power to reconsider an interlocutory order any time prior
to the entry of judgment. See Lovett v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992). “A
‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure, but such a
motion is typically construed either as a Rule 59(e) motion to alter or amend the judgment or as a
Rule 60(b) motion for relief from judgment.” Peterson v. The Travelers Indem. Co., 867 F.3d 992,
997 (8th Cir. 2017) (quoting Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008)).
The Eighth Circuit has “determined that motions for reconsideration are ‘nothing more than Rule
60(b) motions when directed at non-final orders.’” Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th
Cir. 2006) (quoting Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003)). An order
granting, in part, and denying, in part, a motion for summary judgment is “a non-final summary
judgment order because that order resolve[s] only part of the[] dispute.” Nelson v. Am. Home
Assurance Co., 702 F.3d 1038, 1043 (8th Cir. 2012); see also Auto Servs. Co., 537 F.3d at 856
(“[A]n order dismissing fewer than all claims or parties is generally not a final judgment.”).
Under Rule 60(b), the Court may relieve a party from an order on the narrow grounds of
mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud,

3

misrepresentation, or misconduct by an opposing party; voidness; satisfaction of judgment; or “any
other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). “The
rule ‘provides for extraordinary relief which may be granted only upon an adequate showing of
exceptional circumstances.’” Jones v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008) (quoting
United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986) (per curiam)); see also In re Guidant
Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007) (“Rule
60(b) authorizes relief in only the most exceptional of cases.”); United States v. One Parcel of
Prop. Located at Tracts 10 & 11 of Lakeview Heights, Canyo Lake, Comal Cnty., Tex., 51 F.3d
117, 119 (8th Cir. 1995) (concluding that a motion to reconsider filed under Rule 60(b) requires
the moving party to establish “exceptional circumstances” to obtain the “extraordinary relief” the
rule provides). “Rule 60(b) is a motion grounded in equity and exists to prevent the [order or]
judgment from becoming a vehicle of injustice.” Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir.
2005) (internal quotation marks and citation omitted). “Motions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered evidence.”
Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010). Importantly, a motion to
reconsider should not be used “to raise arguments which could have been raised prior to the
issuance of” the challenged order or judgment. Hagerman v. Yukon Energy Corp., 839 F.2d 407,
414 (8th Cir. 1988), cert denied, 488 U.S. 820 (1988).
III.

Motion For Reconsideration
A.

Arguments

Lieutenant Robins asks this Court to reconsider its August 28, 2019, Order; grant him
summary judgment on Mr. Ruiz’s state law claims; and dismiss him from this action (Dkt. No.
167, ¶ 2). Lieutenant Robins maintains that he cannot be held liable on the merits for Mr. Ruiz’s

4

state law claims because his actions were constitutionally reasonable (Id.). Lieutenant Robins
asserts that granting his motion and dismissing him from this action would correct an error of law,
save judicial and party resources, and prevent the injustice of requiring him to go to trial where his
conduct was reasonable and not legally actionable (Id., ¶ 3). Lieutenant Robins argues that this
Court “incorrectly decided a legal question” in the challenged order, suggesting that Lieutenant
Robins seeks relief under Federal Rule of Civil Procedure 60(b)(1) which provides relief due to
“mistake, inadvertence, surprise, or excusable neglect” (Dkt. No. 168, at 3). See Fed. R. Civ. P.
60(b)(1). Lieutenant Robins also appears to argue for relief pursuant to Federal Rule of Civil
Procedure 60(b)(6), which allows a court to “reconsider an earlier ruling for ‘any other reason that
justifies relief.’” (Dkt. No. 168, at 3). See Fed. R. Civ. P. 60(b)(6). The Court notes, however,
that Lieutenant Robins fails to state clearly which provision of Rule 60(b) guarantees him relief.
Lieutenant Robins also maintains that Mr. Ruiz’s tort of outrage claim should fail on the merits
and that he should be awarded summary judgment on that claim (Dkt. No. 168, at 5-6).
In response, Mr. Ruiz asserts that the Court should not reverse any previous orders because
relief under Federal Rule of Civil Procedure 60(b) is reserved for “exceptional circumstances” and
that no exceptional circumstances are present here (Dkt. No. 169, ¶ 3). See United States v. Young,
806 F.2d 805, 806 (8th Cir. 1986) (per curiam), cert denied, 484 U.S. 836 (1987). Mr. Ruiz notes
that Lieutenant Robins seeks reconsideration of an order entered almost ten months ago and that
Lieutenant Robins failed to object to the recommended disposition that the Court adopted (Id., ¶
4). Mr. Ruiz states that Lieutenant Robins’ argument is not appropriately raised through a Rule
60(b) request for relief and that his motion should be denied (Id.).
In reply, Lieutenant Robins highlights Smith v. Kilgore, 926 F.3d 479, 486 (8th Cir. 2019),
an Eighth Circuit case regarding reasonable force and assault and battery claims which Lieutenant

5

Robins asserts supports his position (Dkt. No. 171, at 1). Lieutenant Robins argues that, because
the Court found that he did not use unconstitutional force against Mr. Ruiz, Mr. Ruiz’s state law
claims fail as a matter of law (Id.). Lieutenant Robins reiterates his position that the Court should
reconsider its ruling and grant him summary judgment on Mr. Ruiz’s remaining state law claims
to avoid unnecessary prejudice to Lieutenant Robins, the potential for serious juror confusion, and
a waste of judicial and party resources (Id., at 1-2).
B.

Analysis

As an initial matter, the Court notes that Lieutenant Robins offers no explanation for his
failure to raise these arguments in defendants’ motion for summary judgment; obtain a ruling from
Judge Kearney on these arguments, if appropriately raised; or object to Judge Kearney’s Proposed
Findings and Recommendations prior to this Court’s adopting them. Corporal Harmon and
Sergeant Fry raised objections regarding Mr. Ruiz’s claims, including Mr. Ruiz’s state law claims
(Dkt. No. 144, at 8). As the Eighth Circuit has noted, Rule 60(b) provides “extraordinary relief”
and “may be granted only upon an adequate showing of exceptional circumstances.” Atkinson v.
Prudential Prop., Co., 43 F.3d 367, 371 (8th Cir. 1994) (quotations and citations omitted).
Lieutenant Robins had available the usual channels to raise these arguments, including the
opportunity to object to Judge Kearney’s Proposed Findings and Recommendation, and declined
to do so. See id. at 373 (“Relief is available under Rule 60(b)(6) only where ‘exceptional
circumstances prevented the moving party from seeking redress through the usual channels.’”
(quoting In re Zimmerman, 869 F.2d 1126, 1128 (8th Cir. 1989))). In this case, based on the
Court’s review, there are no “exceptional circumstances” to justify under Rule 60(b)(6) the relief
Lieutenant Robins’ seeks.

6

Lieutenant Robins also has not demonstrated “mistake, inadvertence, surprise, or excusable
neglect” or “any other reason justifying relief from the operation of the judgment” as required by
Rule 60(b)(1) or (6). Fed. R. Civ. P. 60(b)(1), (6). Lieutenant Robins admits that “[t]here is no
clear authority from the United States Supreme Court or Eighth Circuit on the current issue,”
leaving the Court hard-pressed to find a mistake or incorrect legal conclusion warranting such
extraordinary relief (Dkt. No. 168, at 3).
Under Arkansas law, plaintiffs may proceed with intentional torts such as those alleged
here against defendants separate from any constitutional claims, especially since “[i]ntentional
torts overcome the immunity extended to State officers and employees.” Grinen v. Bd. of Trs., 2
S.W.3d 54, 59 (Ark. 1999); see also Ark. State Med. Bd. v. Byers, 521 S.W.3d 459, 463-65 (Ark.
2017) (analyzing malice allegations and state civil rights claims separate from federal civil rights
claims); see also 1 Howard W. Brill & Christian H. Brill, Law of Damages §§ 33:6, 33:13 (Nov.
2019 update) (listing elements of assault, battery, and outrage under Arkansas law). Recent Eighth
Circuit precedent further supports this conclusion. See Franklin v. Franklin Cnty., Ark., 956 F.3d
1060, 1060-61 (8th Cir. 2020) (granting qualified immunity on the 42 U.S.C. § 1983 excessiveforce claims because defendants’ actions did not violate the constitution but remanding state claims
to the district court for further proceedings, including a determination whether to exercise
supplemental jurisdiction over the claims).
Additionally, Lieutenant Robins misstates the outcome of Smith v. Kilgore in asserting his
position (Dkt. No. 171, at 1). In Smith v. Kilgore, the Eighth Circuit concluded that the defendant
officers used reasonable force and that, as a result, the district court properly rejected the plaintiff’s
assault, battery, and wrongful death claims against them. See 926 F.3d at 486. Lieutenant Robins
claims that this conclusion means that Mr. Ruiz’s state law claims fail as a matter of law (Dkt. No.

7

171, at 1). However, the Eighth Circuit reached this conclusion by relying on Missouri law, under
which officers can be liable for assault, battery, and wrongful death claims only when they use
unreasonable force. See 926 F.3d at 486 (citing Wright v. United States, 892 F.3d 963, 967-68
(8th Cir. 2018); Hassan v. City of Minneapolis, 489 F.3d 914, 920 (8th Cir. 2007); Neal v. Helbling,
726 S.W.2d 483, 487 (Mo. App. 1987)). On this point, Arkansas and Missouri law differ, and the
Court determines the Eighth Circuit’s conclusion in Smith v. Kilgore applying Missouri law has
no application to the facts of this case where Arkansas law controls. The Court declines through
a Rule 60(b) motion on a less than fully developed factual record to examine and rule on what all
parties concede are unsettled legal questions.
Finally, to the extent Lieutenant Robins seeks summary judgment in his favor on Mr.
Ruiz’s tort of outrage claim, the Court denies that request (Dkt. No. 168, at 5-6). Judge Kearney
set a dispositive motions deadline in this case for December 29, 2018 (Dkt. No. 14). This Court
entered a Final Scheduling Order on January 21, 2020, and that Order did not reset the dispositive
motions deadline (Dkt. No. 152). Under Federal Rule of Civil Procedure 16(b), a party may file a
motion for summary judgment at any time until the time limit for filing such motions under a
district court’s scheduling order expires. Lieutenant Robins’ request for summary judgment on
this issue through the instant motion is procedurally inappropriate.
IV.

Conclusion

For these reasons, the Court denies Lieutenant Robins’ motion (Dkt. No. 167).
So ordered this the 10th day of July, 2020.

Kristine G. Baker
United States District Judge

8