Hernandez v. Colon et al

Filing 72

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM OF DECISION AND ORDER Regarding Defendants' Motion for Reconsideration. For the reasons stated, the court DENIES Defendants' motion for reconsideration (Dkt. No 70 ). The clerk's office is directed to schedule a case management conference at the earliest convenience of the parties and the court. See attached Memo & Order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARIA HERNANDEZ,
Plaintiff
v.
JOSUE COLON, ROGER GOUDREAU,
EMIL MORALES, & CITY OF HOLYOKE,
Defendants

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) Civil Action No. 3:16-cv-30089-KAR
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MEMORANDUM OF DECISION AND ORDER REGARDING DEFENDANTS' MOTION
FOR RECONSIDERATION
(Dkt. No. 70)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

The three individual Holyoke Police Officer Defendants, Josue Colon, Roger Goudreau,
and Emil Morales (collectively "Defendants"), have asked this court to reconsider so much of its
May 25, 2018 order as denied summary judgment on Plaintiff's claims brought under 42 U.S.C. §
1983 (Counts I, II, III, IV and X). As grounds for their motion for reconsideration, Defendants
contend that the Supreme Court's April 2, 2018 decision in Kisela v. Hughes, 138 S. Ct. 1148
(2018) (per curiam), altered the summary judgment standard of review for claims of qualified
immunity. Defendants submit that Kisela directs the court to view the evidence in the light most
favorable to them as the moving parties. Plaintiff disagrees with Defendants' reading of Kisela
and has opposed Defendants' motion. For the reasons that follow, upon reconsideration of the
court's decision and order of May 25, 2018, the court's ruling on Defendants' motion for
summary judgment stands as to Counts II (unlawful arrest), III (the excessive use of force), and
X (unlawful entry) and so much of Counts I (unreasonable seizure) and IV (failure to intervene)
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as assert claims against Defendant Colon, and Defendants' motion for reconsideration is
DENIED.
II.

DISCUSSION

A.

Reconsideration

"A motion for reconsideration of an order which has granted summary judgment should
be treated as a Rule 59(e) motion." Colón v. Fraticelli, 181 F. Supp. 2d 48, 50 (D.P.R. 2002)
(citing United States v. Podolsky, 158 F.3d 12, 16 (1st Cir. 1998); Vargas v. Gonzalez, 975 F.2d
916, 917 (1st Cir. 1992); Feinstein v. Moses, 951 F.2d 16, 19 n.3 (1st Cir. 1991); Appeal of Sun
Pipe Line Co., 831 F.2d 22, 24 (1st Cir. 1987)). "A party may invoke Rule 59(e) and ask a court
to amend its judgment based on newly discovered material evidence or because the court
committed a manifest error of law or fact." Id. (citing Aybar v. Crispin–Reyes, 118 F.3d 10, 16
(1st Cir. 1997)). "Additionally, the movant may seek to amend the judgment based on an
intervening change in the law." Id. (citing Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90–91
n.3 (1st Cir. 1993); Nat'l Metal Finishing Co. v. BarclaysAm./Commercial, Inc., 899 F.2d 119,
124 n.2 (1st Cir. 1990)). "Rule 59 may not be used to present arguments or evidence which
could have and should have been presented before judgment was entered, but were not." Id. See
Aybar, 118 F.3d at 16; F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992).
Plaintiff points out that the Kisela decision was issued before the undersigned entered the
judgment on Defendants' summary judgment motion and Defendants did not bring their view of
Kisela to the court's attention. When indulgently read, however, Defendants' motion for
reconsideration is based on an alleged legal error in the standard of review applied to Defendants'
qualified immunity claims. Consequently, the court will revisit its determination of qualified
immunity in light of the Court's decision in Kisela.

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B.

Kisela Did Not Alter the Standard of Review of Qualified Immunity Claims on
Summary Judgment

By comparing the evidence recited by the majority opinion in Kisela with the evidence
upon which the dissent relied, Defendants have concluded that Kisela overruled long-standing
precedent that requires courts considering claims of qualified immunity on summary judgment to
view the facts in the light most favorable to the non-moving party. Now, according to
Defendants, the perspective has shifted and courts must view the record in the light most
favorable to the law enforcement officers who are claiming qualified immunity. Defendants are
seeking application of this revised standard to reverse this court's determination that they were
not entitled to summary judgment on Plaintiff's § 1983 claims based on qualified immunity.
Plaintiff has countered that Kisela did not articulate a new standard of review.1 Plaintiff's
argument is persuasive.
In Kisela, Petitioner, Tucson, Arizona Police Officer Andrew Kisela, sought summary
judgment on the ground that he was entitled to qualified immunity for his alleged use of
excessive force against Respondent Amy Hughes. According to the majority's opinion, after
Kisela received a report that Hughes had been "engaging in erratic behavior with a knife," he
observed her holding a large kitchen knife as she took steps toward another woman who was
standing in close proximity. Kisela, 138 S. Ct. at 1150. Hughes refused to drop the knife
notwithstanding officers' repeated commands for her to do so. Id. Fearing that she posed an
imminent threat to the other woman, Kisela fired four shots through a chain link fence and
injured Hughes. Id. at 1150-51. She brought an action under 42 U.S.C. § 1983 "alleging that

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Plaintiff also argued that the Court's per curiam opinion in Kisela is a "'summary action'" that
"'does not have the same precedential effect as does a case decided upon full briefing and
argument'" (Dkt. No. 71 at 2 [quoting Gray v. Mississippi, 481 U.S. 648, 651 n.1 (1987)]).
Consideration of this assertion is not necessary to the court's determination of the issue raised.
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Kisela had used excessive force in violation of the Fourth Amendment." Id. at 1151. Kisela
asserted qualified immunity. Id. at 1150. The question before the Court was "whether at the
time of the shooting Kisela's actions violated clearly established law." Id. The majority
answered the question in the negative finding that qualified immunity shielded Kisela from
liability. Id. at 1153. In the dissent, Justice Sotomayor, who was joined by Justice Ginsburg,
disagreed, indicating that Kisela was not entitled to qualified immunity as a matter of law
because "precedent existing at the time of the shooting clearly established the unconstitutionality
of [his] conduct." Id. at 1161 (Sotomayor, J., dissenting).
Following the bedrock principle of summary judgment practice, the majority indicated
that they viewed the record in the light most favorable to the non-movant. See id. at 1150, 1151;
see also Tolan v. Cotton, 134 S. Ct. 1861, 1863, 1866 (2014) (per curiam) ("In articulating the
factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a
motion for summary judgment, '[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.'") (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)). Although the Kisela dissent criticized the majority for "fall[ing]
short" of "honor[ing] th[e] well-settled principle" articulated in Tolan, it did not indicate that the
standard of review was overruled. Kisela, 138 S. Ct. at 1155 (Sotomayor, J., dissenting).
Indeed, Defendants cite no authority for their position that Kisela revised the standard of review
and cases that have considered Kisela in deciding whether a law enforcement officer should be
granted summary judgment based on qualified immunity have followed the established standard
when considering the record evidence. See Hedgpeth v. Rahim, No. 16-7146, 2018 WL
3117808, at *1 (D.C. Cir. June 26, 2018) ("For purposes of reviewing the court's grant of
summary judgment against Hedgpeth, we view the facts giving rise to his arrest in the light most

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favorable to him."); Wilson v. Prince George's Cty., No. 17-1856, 2018 WL 3015045, at *3 (4th
Cir. June 18, 2018) ("In conducting our review, we construe the evidence in the light most
favorable to Wilson, the non-moving party."); Easley v. City of Riverside, 890 F.3d 851, 856 (9th
Cir. 2018) ("On de novo review of a district court's summary-judgment ruling, this Court 'must
view the evidence, including all reasonable inferences, in favor of the nonmoving party.'")
(quoting Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017)); McCoy v. Meyers, 887 F.3d
1034, 1039, 1044 (10th Cir. 2018) (the court viewed the record in the light most favorable to the
nonmoving party and drew all reasonable inferences in his favor); Sam v. Richard, 887 F.3d 710,
713 (5th Cir. 2018) ("To decide if the non-movant has raised a genuine issue, we view all facts
and evidence in the light most favorable to him and draw all reasonable inferences in his
favor."); Esty v. Town of Haverhill, Civil No. 17-cv-59-AJ, 2018 WL 2871862, at *4 (D.N.H.
June 8, 2018) ("The court must 'draw all reasonable inferences from the record in the light most
favorable to the nonmoving party, disregarding any "conclusory allegations, improbable
inferences, or unsupported speculation."'") (quoting McGrath v. Tavares, 757 F.3d 20, 25 (1st
Cir. 2014) (quoting Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir. 2014))); Avina v.
Bohlen, Case No. 13-CV-1433-JPS, 2018 WL 2324105, at *11 (E.D. Wis. May 22, 2018)
("[A]gainst these principles of leniency toward officers the Court must balance the standard of
review at summary judgment, which is quite generous to a non-movant seeking to overcome an
assertion of qualified immunity. While the non-movant must show that the particular conduct in
question was clearly unlawful under existing law, the particularized version of events used to
make that assessment is taken from the undisputed facts as construed in his favor.") (citing
Williams v. Ind. State Police Dep’t, 797 F.3d 468, 484 (7th Cir. 2015)); see also Winfield v.
Town of Andover, CIVIL ACTION NO. 17-11051-WGY, 2018 WL 1627437, at *9 (D. Mass.

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Apr. 4, 2018) (in allowing the plaintiff's motion to amend the complaint, the court stated:
"Unless this Court is going to engage in forbidden balancing as between these two versions, it is
pellucidly clear that Ms. Winfield's allegations adequately state a claim for the exercise of
excessive force under color of law.") (citing Kisela, 138 S. Ct. at 1148).
As discussed in the ruling on Defendants' motion for summary judgment, the parties
presented vastly divergent views of the events that are the subject of the instant law suit. See
Tolan, 134 S. Ct. at 1866 (2014) ("[C]ourts may not resolve genuine disputes of fact in favor of
the party seeking summary judgment."). Defendants have failed to demonstrate that by viewing
the record evidence in the light most favorable to Plaintiff, the non-moving party, and drawing
all reasonable inferences in her favor, the court committed legal error when rejecting Defendants'
assertions of qualified immunity. Accordingly, Defendants' motion for reconsideration is denied.
III.

CONCLUSION

For the foregoing reasons, the court DENIES Defendants' motion for reconsideration
(Dkt. No 70). The clerk's office is directed to schedule a case management conference at the
earliest convenience of the parties and the court.
It is so ordered.
Date: July 11, 2018

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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