Shimomura v. Carlson et al

Filing 66

ORDER denying 60 Motion to Amend Judgment by Judge R. Brooke Jackson on 8/27/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-000462-RBJ-MJW
TSUTOMU SHIMOMURA,
Plaintiff.
v.
KENDRA CARLSON, an agent of the Transportation Security Administration,
in her individual capacity,
TERRY CATES, an agent of the Transportation Security Administration,
in her individual capacity,
PATTI ZELLER, an agent of the Transportation Security Administration,
in her individual capacity, and
WADE DAVIS, a Denver Police Department officer, in his individual capacity,
Defendants.

ORDER

This matter comes before the Court on Plaintiff’s Motion to Amend Judgment under Fed.
R. Civ. P. 59(e). [ECF No. 60]. The plaintiff specifically moves to amend judgment as to this
Court’s dismissal of the Fourth Amendment claim against Agent Carlson and as to this Court’s
finding that Officer Davis was entitled to qualified immunity. 1
ANALYSIS
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D.C.COLO.LCivR 7.1(a) provides that the court will not consider motions other than Rule 12 and 56
motions unless counsel for the moving party “has conferred or made reasonable good faith efforts to
confer” with opposing counsel “to resolve the disputed matter.” Plaintiff’s counsel did not comply with
this rule. He sent an email to the respective counsel for defendants Carlson and Davis at 3:28 p.m. on the
day of filing (which was the date the motion was due). Delivery to Officer Davis’ counsel immediately
bounced back because plaintiff’s counsel entered the wrong email address. Plaintiff’s counsel did not
send a follow up email to the correct address until 5:54 p.m. The motion was then filed at 6:36 p.m.
Sending an email after business hours and only 42 minutes before filing a motion is not a good faith effort
to confer. Plaintiff’s counsel attempts to excuse the delay on his last-minute decision to file the motion,
which even if true is not an excuse. In this instance the motion relates to the Court’s previous Order
granting motions under Rules 12 and 56 [ECF No. 57], and while that does not exempt the motion from
the rule, the Court elects to consider it on its merits to avoid further procedural skirmishing.
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Under Fed. R. Civ. P. 59(e), a party may file a motion to alter or amend a judgment no
later than 28 days after the entry of judgment. “Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is “appropriate
where the court has misapprehended the facts, a party’s position, or the controlling law.” Id.
However, it is not to be used “to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.” Id.
Upon review of the motion, the Court finds that the plaintiff made no argument that there
has been an intervening change in controlling law or that there is new evidence previously
unavailable that the Court should consider. Presumably, then, the plaintiff bases his motion on
the need to correct clear error or to prevent manifest injustice.
A. Fourth Amendment Claim.
Beginning with the Fourth Amendment claim against Agent Carlson, the plaintiff argues
that he sufficiently pled that “but for Agent Carlson’s false sworn statements, the arrest would
not have occurred.” [ECF No. 60 at 4]. The Court already addressed this position in the
previous Order. The Court found that Officer Davis based his decision to arrest Mr. Shimomura
on both the statements of Agent Carlson and his having personally witnessed the altercation, not
merely one or the other. See Order [ECF No. 57] at 8. However, the plaintiff argues that Agent
Carlson was a but-for cause of his arrest because without her false statements of pain Officer
Davis could not have arrested Mr. Shimomura for misdemeanor assault. As the plaintiff notes in
his Reply, the Court chose to sua sponte dismiss this cause of action based on causation. See
[ECF No. 65 at 7].

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On reflection, the Court should have addressed a more basic problem. The Fourth
Amendment claims against the three TSA agents alleging false arrest should have been
dismissed because none of the TSA agents acted as the arresting officer. “In the context of a
false arrest claim, an arrestee’s constitutional rights were violated if the arresting officer acted in
the absence of probable cause that the person had committed a crime.” Kaufman v. Higgs, 697
F.3d 1297, 1300 (10th Cir. 2012) (emphasis added). According to the Complaint, “Defendant
Davis took Mr. Shimomura into custody, directing him to sit on a bench in the screening area.”
[ECF No. 1 at ¶ 26]. After doing so, Officer Davis conferred with the three TSA agent
defendants and thereafter “served on Mr. Shimomura a criminal summons and complaint for
assault.” Id. at ¶ 27. While Mr. Shimomura alleges that both “Defendant Carlson and Defendant
Davis made the decision to charge Mr. Shimomura with assault,” id., only the arresting officer
charges an individual with a crime. Similarly, only the arresting officer effectuates the arrest.
The Complaint makes it clear that Officer Davis, and not Agent Carlson, was the arresting
officer in this case. As such, the Court finds that Mr. Shimomura failed to state a claim for relief
under the Fourth Amendment as against the TSA agent defendants, including Agent Carlson.
B. Qualified Immunity.
Mr. Shimomura also contends that the Court should have found that Officer Davis was
not entitled to qualified immunity because the arrest lacked “arguable probable cause.” [ECF
No. 60 at 6]. The plaintiff effectively makes the same arguments in this motion as he did in his
earlier briefs, that Officer Davis’ testimony is inconsistent because he said he saw the roller bag
strike Agent Carlson’s legs while also contending that the security footage was an accurate
depiction of the events he witnessed. [ECF No. 60 at 7]. The Court has already addressed the
video in the context of Officer Davis’ qualified immunity defense. In doing so, it found that

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there was no probable cause to support the arrest. Order [ECF No. 57] at 14–17. However, the
Court held that there was still “arguable probable cause” given how quickly the entire series of
events took place coupled with Agent Carlson’s allegations of pain. Id. at 18. The plaintiff
acknowledges the Court’s decision but disagrees with the Court’s finding of arguable probable
cause. [ECF No. 60 at 8]. I am not convinced by the plaintiff’s arguments and do not find that
the original ruling suffered from either clear error or manifest injustice.
ORDER
For the foregoing reasons, Plaintiff’s Motion to Amend Judgment [ECF No. 60] is
DENIED.
DATED this 27th day of August, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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