Nelson v. White et al

Filing 65

ORDER denying 62 Motion for Reconsideration. Signed by Magistrate Judge Michael T. Parker on April 6, 2016.(jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TAIRE NELSON

PLAINTIFF

v.

CIVIL ACTION NO.: 5:14-cv-81-MTP

DANNY WHITE, ET AL.

DEFENDANTS
OPINION AND ORDER

THIS MATTER is before the Court on the Expedited Motion For Reconsideration of the
Denial of Summary Judgment [62] filed by Defendant Correll Singleton. Having considered the
motion and the applicable law, the Court finds that Defendant Correll Singleton‟s Expedited Motion
For Reconsideration [62] should be denied.
Under Federal Rule of Civil Procedure 54(b), “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties‟ rights and liabilities[.]”
When an order is issued pursuant to Rule 54(b) a court may grant a party‟s motion for
reconsideration “„for any reason it deems sufficient.‟” United States v. Renda, 709 F.3d 472, 479 (5th
Cir. 2013) (quoting Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 210-11 (5th Cir. 2010)). Unlike
reconsideration motions brought after final judgment under Rules 59 and 60, reconsideration orders
may be granted “even in the absence of new evidence or an intervening change in or clarification of
substantive law.” See Saqui, 595 F.3d at 210-11 (quoting Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 185 (5th Cir. 1990), overruled on other grounds by Little v. Liquid Air Corp., 37 F.3d
1069 (5th Cir. 1994)).

1

This Court previously denied that portion of Defendant‟s Motion for Summary Judgment
[54] in which he argued he was entitled to qualified immunity. Plaintiff accuses Defendant of using
excessive force during the course of his arrest. Specifically, he alleges that Defendant over-utilized
his Taser. In the order denying the motion for summary judgment, this Court relied on a video
depicting some of the events stating that, “the contents of the video do not blatantly contradict the
version of events told by Plaintiff that no reasonable trier of fact could believe his version.” [61] at 7.
After discussing the objectionable reasonableness of Defendant‟s actions for purposes of qualified
immunity, the Court observed that there were also missing parts of the video, and “that there is a
genuine issue of material fact as to whether Defendant Singleton‟s use of force was excessive or
objectively reasonable.” Id.
Defendant Singleton argues in his motion for reconsideration that it is Plaintiff‟s burden to
show specific facts which would rebut the Defendant‟s characterization of the record, regardless of
what may or may not be contained within the missing portions of the video. In his response [58] to
the Defendant‟s Motion for Summary Judgment the Plaintiff did not merely state that excessive
force was used against him. Plaintiff specifically alleged, while citing portions of the video, that
Defendant Singleton “used excessive force by dislodging multiple shots from the deployment of his
Taser while Plaintiff was already subdued.” [58] at 2. Defendant Singleton characterizes this
statement as an “unsubstantiated assertion.” While some of Plaintiff‟s allegations may be
unsubstantiated, this specific assertion is at least supported by the video.1 The video plainly shows
Defendant deploying the Taser multiple times while Plaintiff was on the ground arguably
“subdued.” This along with the missing portions of the video creates a fact question for the purpose
of addressing qualified immunity.
1

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (district court's task, in deciding whether
there is a “genuine” issue of fact, is to determine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
2

When considering reasonableness in the context of excessive force for qualified immunity
purposes, the Fifth Circuit direct that courts “pay „careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of the officers or others, and whether he was actively resisting arrest
or attempting to evade arrest by flight.‟” Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)) (internal alterations omitted). While Plaintiff initially
fled, the video does not put the situation into context or demonstrate why a Taser was necessary
each time it was used against the Plaintiff - who was placed under arrest for the non-violent crime of
Uttering Forgery.
Further evidence is needed to decide this issue and to determine the reasonableness of
Defendant‟s actions for purposes of addressing qualified immunity. At this time, there are genuine
issues of material fact as to the reasonableness of the Defendant‟s conduct that preclude a
determination of qualified immunity. “The issue of qualified immunity is a question of law, but in
certain circumstances where “there remain disputed issues of material fact relative to immunity, the
[fact finder], properly instructed, may decide the question.” Mesa v. Prejean, 543 F.3d 264, 269 (5th
Cir. 2008); see also Johnson v. Jones, 515 U.S. 304, 320 (1995).
For the reasons described above the Motion For Reconsideration of the Denial of Summary
Judgment [62] is denied.
SO ORDERED this the 6th day of April, 2016.
s/ Michael T. Parker
United States Magistrate Judge

3