Justiniano v. Walker et al

Filing 121

Magistrate Judge Donald L. Cabell: ORDER entered. ORDER ON PLAINTIFF'S MOTION TO VACATE JUDGMENT denying 97 MOTION to Vacate Judgment Based on Newly Discovered Evidence. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DAMARIS
JUSTINIANO,
as
the
Personal Representative of the
Estate of WILFREDO JUSTINIANO,
JR.,

No. 15-cv-11587-DLC

Plaintiff,
v.
STEPHEN WALKER
ALBEN,

and TIMOTHY P.
Defendants.

ORDER ON PLAINTIFF’S MOTION TO VACATE JUDGMENT
CABELL, U.S.M.J.
I.

INTRODUCTION
This court previously entered judgment in favor of defendant

Trooper Stephen Walker after granting his motion for summary
judgment.

(D. 90. 92).

The plaintiff moves to vacate the judgment

on the ground of newly discovered evidence.

(D. 97).

For the

reasons explained below, the motion is denied.
II.

RELEVANT BACKGROUND

Following

the

unfortunate

fatal

shooting

of

Wilfredo

Justiniano by defendant Massachusetts State Trooper Stephen Walker
during

a

roadside

incident,

Damaris

Justiniano

as

personal

representative of his estate brought suit against Trooper Walker,

Walker’s superior Colonel Timothy Alben and, in a separate state
court action, the Massachusetts State Police.

As it concerns

Trooper Walker and this matter, the plaintiff’s principal claim
was that Trooper Walker violated Justiniano’s Fourth Amendment
right to be free from the use of excessive force.
Walker moved for summary judgment on the ground that he acted
reasonably and would regardless be entitled to qualified immunity.
In considering the motion, the court relied upon evidence from
civilian observers, but also relied upon uncorroborated evidence
from Trooper Walker that Justiniano wielded a pen as a weapon and
made threatening statements to Trooper Walker. 1

The court found

based on the entire record that the defendant acted reasonably
under the circumstances and therefore did not use excessive force.
The court found further that Trooper Walker would enjoy qualified
immunity even if his actions were excessive because it would not
have been clear to a reasonable officer in his position that his
actions

were

unlawful.

The

court

accordingly

granted

the

defendant’s motion for summary judgment.
Justiniano timely appealed to the First Circuit Court of
Appeals.

Well into the appellate process, however, after briefing

and oral argument, the plaintiff moved pursuant to Fed. R. Civ. P.

1

Although no witness testified to seeing Justiniano wielding a pen, a pen was
found at the scene. Also, while civilian witnesses saw Justiniano and Walker
talking, none of them could hear what was being said.

2

60 to have this court set aside its judgment on the ground of newly
discovered

evidence,

namely

evidence

from

Trooper

Walker’s

personnel file tending to suggest that he has on prior occasions
been untruthful when faced with discipline procedures arising from
incidents of misconduct.

(D. 97).

This court denied the motion on the ground that the court
lacked subject matter jurisdiction to act where the case was
pending on appeal.

(D. 100).

The plaintiff appealed that ruling

as well and the Court of Appeals in response vacated this court’s
denial, and remanded the matter with instructions to construe the
plaintiff’s motion as one under Fed. R. Civ. P. 62.1, which inter
alia would permit the court to deny the motion or alternatively
indicate whether it would grant the motion.

(D. 106).

With respect to the substance of the pending motion, the
plaintiff asserts that she discovered new material evidence in
connection with a separate but factually related matter pending in
the

Massachusetts

state

superior

court.

See

Justiniano

v.

Department of State Police, No. 1684CV00399 (Mass. Super. Ct.
Suffolk Co. filed Feb. 5, 2016).2

(For reference, the present

federal action was commenced almost a year earlier than the state
court action, on April 14, 2015).

Of relevance here, and as the

The plaintiff also filed a medical malpractice action against the physicians
who treated Justiniano after he was shot. This case was eventually
consolidated with the State Police case.
2

3

parties acknowledged at the hearing on the present motion, the
parties had agreed that four or five depositions, including that
of Trooper Walker, would be cross-noticed.

Trooper Walker was

deposed on December 14, 2017.
The plaintiff contends specifically that on June 25, 2019 she
received through discovery in the state court action portions of
Trooper

Walker’s

personnel

file.

She

asserts

that

the

file

contains evidence indicating that the defendant was accused of
some misconduct on two prior occasions and in each case offered
explanations which his superiors or investigating officer did not
believe.

The plaintiff also discovered that although Trooper

Walker testified in his deposition for this case that he filed a
use of force report in connection with Justiniano’s shooting, the
State Police informed the plaintiff through the state court action
that

it

could

not

find

any

such

report,

suggesting,

so

the

plaintiff contends, that Trooper Walker made a false statement and
that no report was in fact ever filed.

(D. 105-8).

The plaintiff argues that the evidence shows that Trooper
Walker has a history of fabricating stories when he knows his
conduct is under investigation.

She argues that his credibility

in the present case is suspect in light of this evidence, and that
this court therefore can no longer credit his uncorroborated
statements about what transpired between him and Justiniano.
4

The

plaintiff

argues

that

without

the

force

of

Trooper

Walker’s

statements, genuine issues of fact exist as to whether he acted
reasonably when he used pepper spray and/or shot Justiniano. 3
Consequently, the court’s order of summary judgment should now be
vacated.
Walker demurs and advances three reasons why the plaintiff’s
motion should be denied.

First, the plaintiff cannot show under

Rule 60(b)(2) that she could not have discovered the evidence
earlier by exercising due diligence.

Second, even if she could,

the evidence in the record supports the court’s decision that
Trooper

Walker

acted

reasonably

even

statements are excised from the calculus.

if

his

uncorroborated

Third, Trooper Walker

would still be entitled to qualified immunity in any event.

3

As

It bears noting that the parties have for apparently different reasons
shifted the focus of this case from the reasonableness of the actual shooting
to the reasonableness of the first use of pepper spray. Previously, the
plaintiff’s principal claim was that Trooper Walker used excessive force when
he shot Justiniano. That was clearly the thrust of the complaint, although
the plaintiff notes that the complaint did in at least in part reference the
use of pepper spray as improper. The shooting was also clearly the focal
point of interest throughout the summary judgment process. Indeed, no party
argued that the first use of pepper spray should factor meaningfully into the
court’s analysis and no party thereafter challenged the court’s reasoning in
its summary judgment decision as improperly focusing on the propriety of the
shooting rather than the first use of pepper spray. On appeal and in the
present litigation, however, the plaintiff has without much fanfare made the
first use of pepper spray the critical moment, and the defendant has
responded in kind, again for apparently different reasons. As this court
noted at the hearing, though, it is not clear whether this shift in the
context of the appeal and present motion is permissible, impermissible or of
no consequence, particularly where the plaintiff acknowledged at the hearing
that he was not purporting to change his theory of liability on the basis of
the new evidence. Because the court decides ultimately that the new evidence
would not in any event alter the court’s prior decision, it is not necessary
to consider this issue further.

5

discussed below, the court agrees that the plaintiff has not shown
satisfactorily that she could not have through the exercise of
diligence discovered the evidence sooner than she did.

Even

assuming she could, the court finds that it would conclude that
qualified immunity applies even if it incorporated the force of
the

new

evidence

by

ignoring

the

defendant’s

uncorroborated

statements.
III. LEGAL FRAMEWORK
Federal Rule of Civil Procedure 60(b)(2) entitles a party to
relief from summary judgment based on newly discovered evidence if
(1)

the evidence has

the evidence could

been

not

by

discovered
due

since

diligence

the

have

judgment;

been

(2)

discovered

earlier by the movant; (3) the evidence is not merely cumulative
or impeaching; and (4) the evidence is of such a nature that it
would probably change the result were a new trial to be granted.
Mitchell v. United States, 141 F.3d 8, 18 (1st Cir. 1998).

The

movant bears the burden of satisfying each of these criteria.

U.S.

Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002).
A party who argues that newly discovered evidence warrants
relief from a judgment must, at the very least, offer a convincing
explanation as to why the party could not have proffered the
crucial evidence at an earlier stage of the proceedings. Fed. R.
Civ. P. 60(b)(2); see Karak v. Bursaw Oil Corp., 288 F.3d 15 (1st
6

Cir. 2002).

“In order for evidence to be newly discovered, the

party seeking a new trial must be unaware of the existence of
the evidence before or during the trial.”

Kettenbach v. Demoulas,

901 F. Supp. 486, 494 (D. Mass. 1995).
The parties here dispute whether the plaintiff has satisfied
the second (due diligence) and fourth (materiality) criteria.

The

plaintiff acknowledged at the hearing that she was aware of Trooper
Walker’s personnel file long before the defendant moved for summary
judgment but had no basis to be aware that the file might contain
evidence that Walker was untruthful when faced with discipline, or
that he made misrepresentations in his deposition.
The defendant counters that the plaintiff knew about the
personnel file from the outset of the case.

The defendant notes

that the plaintiff sought discovery of the file no later than
February 2017 (about a year before the defendant moved for summary
judgment on February 15, 2018 (D. 58)), and did not follow up with
a more narrow request or a motion to compel when the defendant
objected to producing or agreeing to have the State Police produce
his entire personnel file, and also did not ask this court to delay
ruling on the defendant’s motion for summary judgment.
As discussed below, the plaintiff is not entitled to relief
under Rule 60(b)(2) because she has not shown that the evidence
concerning

Trooper

Walker’s

alleged
7

misconduct

and

false

statements could not have been discovered sooner than it was. Even
assuming arguendo that the plaintiff met the rule’s requirements,
the new evidence does not alter this court’s conclusion that
Trooper Walker would nonetheless be entitled to qualified immunity
even assuming his conduct were found to violate Justiniano’s
rights.
IV.

DISCUSSION

A. Due Diligence
A brief summary of the discovery in the federal and state
court actions as it relates primarily to the issue of Trooper
Walker’s personnel file helps to place the due diligence issue in
context.
In May 2016 the plaintiff made over 100 document requests in
the state court action.

These requests presumably included one

for Trooper Walker’s personnel file because the State Police
subsequently

informed

the

plaintiff

that

it

needed

Trooper

Walker’s consent to produce the file, which he declined to give.
Several months later, in February 2017, the plaintiff served
written discovery requests on Trooper Walker in this matter and
among other things requested the defendant’s entire personnel
file.

Trooper Walker objected on the grounds of overbreadth and

relevance where his career had spanned 29 years.

8

Several more months later, in September 2017, the plaintiff
followed up on her state court action document request and informed
the State Police that she would submit narrower requests. However,
the State Police claim that the plaintiff’s new requests, sent in
November 2017, essentially duplicated her May 2016 requests. (D.
110-4).
On

November

17,

2017,

the

parties

conducted

discovery conference in the state court action.
counsel attended the conference as well.

a

“Rule

9”

Trooper Walker’s

The defendant’s counsel

continued to object to producing the defendant’s entire personnel
file.

Counsel moreover noted that the State Police would be the

better source to seek the records from because they maintained
more thorough records than the defendant did. However, the parties
did agree that the State Police would produce the defendant’s
disciplinary history pursuant to a federal subpoena.
Between mid-November and mid-December 2017, the state police
produced Trooper Walker’s disciplinary history in the form of a
summary of all discipline taken against him.

However, the summary

did not include any details on the investigation of disciplinary
matters.
On December 8, 2017, Trooper Walker formally responded to the
plaintiff’s request for documents in the present federal action;

9

he objected to producing his entire personnel file on the grounds
of overbreadth, vagueness, and relevance.
On December 14, 2017, the plaintiff deposed Trooper Walker.
On

January

15,

2018,

and

after

three

extensions,

fact

discovery closed in the present federal action.
On

February

judgment.

15,

2018,

Trooper

Walker

moved

for

summary

Oral argument took place on May 1, 2018.

Following the hearing, the plaintiff on May 7, 2018
contacted Trooper Walker’s counsel to ask anew if he would
consider producing the defendant’s personnel file, presumably in
connection with the state court action.

Similarly, on May 15,

2018, the plaintiff contacted counsel for the State Police and
asked again for Trooper Walker’s personnel file.
Between May 9 and August 28, 2018, the parties filed posthearing memoranda in this matter; none of it implicated any
discovery concerning Trooper Walker’s personnel file.

(D. 85-

89).
On September 30, 2018, the court granted the defendant’s
motion for summary judgment.

(D. 90, 92).

the plaintiff filed a notice of appeal.

On October 15, 2018,

(D. 93).

Some six months or so later, in May 2019, the plaintiff
moved in the state court action to compel the production of
Trooper Walker’s personnel file.
10

In June 2019 the state court

granted the motion and compelled the production of any use of
force reports filed by Trooper Walker as well as his performance
reviews and disciplinary incident reports from 2010-2013.

On

June 25, 2019, the State Police produced the documents.
Against this backdrop, it is clear that the plaintiff
expended some effort to obtain the defendant’s disciplinary
records.

The court finds that that effort, however, was less

than diligent for purposes of the federal action.
Among other things, the plaintiff had by February 2017
requested Trooper Walker’s personnel file in both the state and
federal matters and been told that Trooper Walker objected to
its disclosure.

Several months went by before the plaintiff in

September 2017 resumed her efforts to obtain the discovery by
agreeing to submit narrower requests in the state court matter,
something she then apparently failed to do.
In late November the parties apparently agreed that the
State Police would produce the defendant’s disciplinary history
pursuant to a federal subpoena, and records were produced around
mid-December 2017, but those records consisted of a summary of
disciplinary actions taken against Trooper Walker but did not
include any details on the investigation of disciplinary
matters.

11

Thereafter, over the course of the next several months, the
plaintiff deposed the defendant (December 14, 2017), the
defendant moved for summary judgment (February 15, 2018), and
the parties argued summary judgment (May 1, 2018).

During that

span, however, there is no indication that the plaintiff ever
resumed efforts to obtain further discovery, although it was
clear to all that the personnel file issue was unresolved.
Indeed, the plaintiff one week after argument on the
summary judgment motion (May 7, 2018) contacted the defendant’s
counsel to ask anew if he would consider producing the
defendant’s personnel file, presumably in connection with the
state court action.

The plaintiff also contacted the State

Police a week after that (May 15, 2018) to ask for the same
thing.

While one might look at this as reflecting a continued

if not sporadic effort to obtain the discovery, the plaintiff
then did nothing further for essentially the next year; it was
not until May 2019 that the plaintiff took actual steps to
obtain the discovery through a motion to compel in the state
court matter.
In sum, the plaintiff knew as late as December 2017 that
she did not have all of the discovery regarding Trooper Walker’s
disciplinary history.

The plaintiff was in a position then to

seek relief from this court to compel production of the
12

discovery but the plaintiff went on to depose Trooper Walker
without resolving this issue, and then allowed fact discovery to
end (January 15, 2018) without taking action.

Instead, the

plaintiff renewed her requests for the discovery only several
months later, in May 2018, after oral argument on the summary
judgment motion.

Even then, though, the plaintiff did not

follow up on her requests or take any further action to obtain
the discovery, in either state or federal court, until she filed
the state court motion to compel a year later in May 2019.
When asked by this court why no steps were taken sooner in
the federal action to compel discovery or delay summary judgment,
counsel responded that he “didn’t want to throw spaghetti at the
wall,” and that the defendant’s counsel kept representing that he
would look into what records the defendant was willing to produce.
These reasons help to understand why the plaintiff failed to take
more concerted action but they do not justify that inaction where
it is now evident that counsel could have taken concrete steps in
2017 (if not 2016) to obtain the discovery.

See Lyles v. Medtronic

Sofamor Danek, USA, Inc., 871 F.3d 305, 316 (5th Cir. 2017) (due
diligence not shown where plaintiff was aware that certain devices
had been used in his surgery but defendant had not produced
documentation on those devices and plaintiff never followed up
discovery request); Zurich North America v. Matrix Service, Inc.,
13

426 F.3d 1281, 1291-92 (10th Cir. 2005) (while a party’s withholding
of documents may have violated the spirit of Rule 26, where the
party seeking discovery was aware documents had not been produced
but

never

sought

to

compel

these

documents

or

postpone

determination of summary judgment, diligence was not shown).
In sum, the court finds that the plaintiff has failed to
meet her burden under Fed. R. Civ. P. 60(b)(2) to show that the
evidence could not by due diligence have been discovered earlier
than it was.

The plaintiff’s motion to vacate therefore fails.

U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir.
2002).
B. Qualified Immunity
Even assuming arguendo that the plaintiff could show she
exercised reasonable diligence, the plaintiff would still have to
show that the new evidence would probably change the outcome of
the summary judgment motion.

The court finds in that regard that

even if the new evidence were incorporated and Trooper Walker’s
uncorroborated

statements

were

removed

from

consideration,

he

would still be entitled to qualified immunity.
Qualified immunity shelters government officials from civil
liability “‘insofar as their conduct does not violate clearly
established

statutory

or

constitutional

reasonable person would have known.’”
14

rights

of

which

a

McKenny v. Mangino, 873

F.3d 75, 80 (1st Cir. 2017)(quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
Courts generally analyze qualified immunity claims under a
two-step approach that first requires the plaintiff to identify
“‘controlling authority’ or a ‘consensus of cases of persuasive
authority’” that communicates “a clear signal to a reasonable
official that certain conduct falls short of the constitutional
norm.”

Alfano v. Lynch,

847

F.3d

71,

76

(1st

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Cir.

2017)

Second, the

court must determine “whether an objectively reasonable official
in the defendant's position would have known that his conduct
violated that rule of law.”

Id.

Courts have discretion however to bypass the first step of
this analysis and proceed directly to the second.

See Penate v.

Hanchett, No. 19-1187, 2019 WL 6798883, at *5 (1 st Cir. Dec. 13,
2019).

The court does so here.

While qualified immunity cannot protect Trooper Walker from
liability if, on an objective basis, no reasonably competent
officer would have acted as he did, “if officers of reasonable
competence

could

disagree

on

[the

lawfulness

conduct], immunity should be recognized.”

of

the

alleged

Malley v. Briggs, 475

U.S. 335, 341 (1986). Thus, the defense of qualified immunity

15

“provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.”

Id. at 349.

Here, assuming that Trooper Walker’s use of pepper spray or
his firearm constituted unreasonable force, and that the right to
be free from such force was clearly established in June 2013, the
relevant inquiry for qualified immunity purposes is whether a
reasonable,

similarly

situated

officer

would

have

understood

Trooper Walker’s conduct to violate Justiniano’s rights.

Viewing

the facts in a light most favorable to the plaintiff, the court
finds that a reasonable officer would not have clearly understood
Walker’s conduct to be unreasonable.

The uncontested facts (minus

Trooper Walker’s testimony) establish that:
1. Justiniano was acting erratically before Trooper Walker
arrived at the scene. Karen Kyriakides had seen him pull
off Route 28 during the morning rush hour after witnessing
him driving erratically, and when she stopped to see if he
was OK, he emerged from his car and spoke unintelligibly
to her;
2. Kyriakides found Justiniano confused and distraught, and
when she called 911, she asked the dispatcher “to send
somebody out because I was scared for the man and anybody
else driving by.” She locked her car doors as she waited
because she “was a little scared because [she] didn’t know
what this man was capable of.”
3. While she was waiting, Kyriakides saw Justiniano exit his
vehicle again, pace around his car, and throw his arms in
the air while tilting his head back. At one point, she
feared he would walk into the road.
4. After Trooper Walker arrived, Kyriakides and two other
witnesses saw Trooper Walker using hand gestures consistent
16

with trying to calm Justiniano down, indicating that
Justiniano remained or at a minimum appeared agitated and
distraught. None of the witnesses saw Justiniano complying
with Trooper Walker’s gestures.
5. One witness, Jo Ann Silva Winbush, saw Trooper Walker
pepper spray Justiniano twice. She reported that the first
pepper spray happened after Trooper Walker had backed into
Route 28 right in front of her vehicle to maintain distance
from Justiniano.
6. Kyriakides, Winbush, and another witness all said
Justiniano was lunging at Trooper Walker and approaching
him aggressively with clenched fists just before Walker
shot Justiniano.
Based on the foregoing, an objectively reasonable officer in
Trooper Walker’s position would not have understood that emitting
a burst of pepper spray to retard Justinano’s movements violated
his rights.

On the contrary, the undisputed facts demonstrate

that Justiniano appeared agitated and distraught when Trooper
Walker arrived, Trooper Walker tried to calm him down by holding
up his hands, Justinano did not comply, and Trooper Walker used
the pepper spray only after he was forced to back up into Route
28.4
To be sure, the plaintiff cites to Gray v. Cummings, 917 F.3d
1 (1st Cir. 2019) for the proposition that a subject’s mental

4

As noted above, the plaintiff focuses principally on the first use of pepper
spray and thus does not address whether, assuming Trooper Walker’s testimony
is ignored, he would or would not be entitled to qualified immunity with
respect to the shooting. To the extent it matters, this court finds that
Trooper Walker would still be entitled to qualified immunity with respect to
the shooting where there is no dispute that Justiniano aggressively lunged at
him with clenched fists after the second use of the pepper spray.

17

illness must be taken into account when determining the amount of
force that is reasonable.

However, the court in Gray actually

found that a reasonable officer in May 2013 could have determined
that a single use of a taser at its lowest setting to quell a nonviolent, mentally ill subject who was resisting arrest did not
violate the Fourth Amendment.

Id. at 12.

Similarly, this court

would find that a reasonable officer in Trooper Walker’s position
in June 2013 could have determined that using a single burst of
pepper spray on a non-compliant, sometimes pacing, distraught
individual adjacent to a busy highway did not violate the Fourth
Amendment.
V.

CONCLUSION
For the foregoing reasons, the Plaintiff’s Motion to Vacate

Judgment (D. 97) is DENIED.

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: December 24, 2019

18