Sturdivant et al v. Adams County, Mississippi et al

Filing 78

MEMORANDUM OPINION and ORDER denying 73 Motion to Set Aside Judgment. The Court denies Plaintiffs' Motion for Relief from Judgment. Signed by District Judge Keith Starrett on 2/20/19. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ESTATE OF JOSEPH LAVERNE STURDIVANT, et al.
v.

PLAINTIFFS

CIVIL ACTION NO. 5:17-CV-20-KS-MTP

ADAMS COUNTY, MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Plaintiffs’ Motion for Relief from
Judgment [73].
I. BACKGROUND
The Court discussed the background of this case in its Memorandum Opinion
and Order [71] of December 18, 2018, in which it granted Defendant Victor Smith’s
Motion for Summary Judgment. The Court held 1) that Plaintiffs did not have
standing to pursue Joseph Sturdivant’s Fourteenth Amendment claims for injuries
allegedly caused by Defendant Victor Smith’s failure to protect him from other
inmates, 2) that Plaintiffs did not plead any claim that Victor Smith was deliberately
indifferent to the risk of Sturdivant committing suicide, and 3) that Plaintiffs did not
have standing to pursue Sturdivant’s excessive force claims against Smith. On
January 15, 2019, Plaintiffs filed a Motion for Relief from Judgment [73], asking the
Court to amend its prior opinion and deny Smith’s Motion for Summary Judgment
on the suicide claims.

II. DISCUSSION
“A motion asking the court to reconsider a prior ruling is evaluated either as a
motion . . . under Rule 59(e) or . . . under Rule 60(b). The rule under which the motion
is considered is based on when the motion is filed. If the motion is filed within twentyeight days after the entry of judgment, the motion is treated as though it was filed
under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60.”
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 2012). Plaintiffs’
Motion for Relief from Judgment [73] was filed twenty-eight days after the entry of
judgment. Therefore, Rule 59(e) applies.
“A Rule 59(e) motion calls into question the correctness of a judgment.” Templet
v. Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for
altering a judgment under Rule 59(e): “(1) an intervening change in controlling law,
(2) the availability of new evidence not previously available, or (3) the need to correct
a clear error of law or prevent manifest injustice.” Williamson Pounders Architects,
P.C. v. Tunica County, 681 F. Supp. 2d 766, 767 (N.D. Miss. 2008). Rule 59(e) motions
are “not the proper vehicle for rehashing evidence, legal theories, or arguments that
could have been offered or raised before the entry of judgment,” Templet, 367 F.3d at
478, and they “should not be used to . . . re-urge matters that have already been
advanced by a party.” Nationalist Movement v. Town of Jena, 321 F. App=x 359, 364
(5th Cir. 2009). It is “an extraordinary remedy that should be used sparingly.” Id.
Before filing a Rule 59(e) motion, a party “should evaluate whether what may seem
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to be a clear error of law is in fact simply a point of disagreement” with the Court.
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990).
Plaintiffs have not offered any new evidence previously unavailable or noted
an intervening change in the controlling law. Rather, they argue that the Court
should have conformed the pleadings to the evidence and considered a claim that
Defendant Smith was deliberately indifferent to the risk of Sturdivant committing
suicide. They apparently contend that Defendant consented to the amendment by
briefing issues related to the suicide.
Plaintiffs may not defeat summary judgment by raising a theory of liability
that was never pleaded or tried by consent. Johnson v. Thibodeaux City, 887 F.3d
726, 736 (5th Cir. 2018). But “in considering a motion for summary judgment, the
pleadings may be treated as though they had been amended to conform to the
evidence filed with the motion when not objected to by the opposite party.” Putnam
v. Williams, 652 F.2d 497, 499 (5th Cir. 1981). The Fifth Circuit has applied Rule
15(b) to such situations. See McDonough Marine Serv., Inc. v. M/V Royal Street, 608
F.2d 203, 204 (5th Cir. 1979). The question for the Court, therefore, is whether
Defendant provided “express or implied consent” to amend the pleadings. FED. R. CIV.
P. 15(b). “Whether an issue has been tried with consent of the parties depends upon
whether the parties recognized that the unpleaded issue entered the case . . . ,
whether the evidence that supports the unpleaded issue was introduced . . . without
objection, and whether a finding of trial by consent prejudiced the opposing party’s
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opportunity to respond.” United States v. Shanbaum, 10 F.3d 305, 312-13 (5th Cir.
1994).
First, although Defendant briefed some issues related to the potential suicide
claims in case the Court decided to address them, he also specifically objected to any
amendment at the summary judgment stage. Therefore, he did not consent to an
amendment of the operative pleading, and none of the cases cited by Plaintiffs provide
authority for this Court to force an amendment ex post facto over the opposing party’s
objection.
Moreover, a finding of trial by consent would severely prejudice Defendant
because, among other reasons, Plaintiffs relied on a witness for whom they never
disclosed required information in discovery. In response to Defendant’s motion,
Plaintiffs relied on an affidavit from William Nolan Zimmerman, Jr., Sturdivant’s
cellmate at the time of the events leading to this lawsuit. See Exhibit 8 to Response,
Sturdivant v. Adams County, Miss., No. 5:17-CV-20-KS-MTP (S.D. Miss. Sept. 14,
2018), ECF No. 46-7. Plaintiffs first identified William Zimmerman as a witness in
their supplemented disclosures served on November 1, 2017, but they provided no
information beyond his name. See Exhibit 5 to Motion to Dismiss, Sturdivant v.
Adams County, Miss., No. 5:17-CV-20-KS-MTP (S.D. Miss. Sept. 17, 2018), ECF No.
50-5. Plaintiffs’ counsel represented that the already tardy disclosures would be
supplemented, but Plaintiffs never supplemented.
Defendant propounded written discovery to Plaintiffs on November 2, 2017.
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See Exhibits 2, 3, and 4 to Motion to Dismiss, Sturdivant v. Adams County, Miss., No.
5:17-CV-20-KS-MTP (S.D. Miss. Sept. 17, 2018), ECF Nos. 50-2, 50-3, 50-4. Among
other things, Defendant sought information regarding witnesses to support Plaintiffs’
claims. Plaintiffs did not timely respond to the discovery requests, and the Court
entered an order compelling Plaintiffs to respond. See Order, Sturdivant v. Adams
County, Miss., No. 5:17-CV-20-KS-MTP (S.D. Miss. Feb. 12, 2018), ECF No. 28.
Defendant represented in briefing on the dispositive motions that Plaintiffs never
complied with the Court’s order, and Plaintiffs do not dispute his representation.
Defendant’s counsel also repeatedly tried to schedule depositions for Zimmerman and
other potential witnesses, but Plaintiffs’ counsel never responded. See Exhibit 6 to
Motion to Dismiss, Sturdivant v. Adams County, Miss., No. 5:17-CV-20-KS-MTP (S.D.
Miss. Sept. 17, 2018), ECF No. 50-6.
Therefore, for these reasons, the Court finds that a finding of trial by consent
would severely prejudice Defendant because he never had an opportunity to depose
Zimmerman, and Plaintiff never provided any information about Zimmerman or his
testimony in response to Defendant’s discovery requests.
Alternatively, Plaintiffs argue that they should be granted leave to amend
their Complaint now, after a final judgment has been entered. “Rule 16(b) governs
amendment of pleadings after a scheduling order deadline has expired. Only upon
the movant’s demonstration of good cause to modify the scheduling order will the
more liberal standard of Rule 15(a) apply to the district court’s decision to grant or
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deny leave.” S & W Enters., LLC v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536
(5th Cir. 2003). Four factors are relevant to good cause: “(1) the explanation for the
failure to timely move for leave to amend; (2) the importance of the amendment; (3)
potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.” Id.
The Court will assume that the proposed amendment is important, but
Plaintiffs have not provided any explanation for their failure to timely seek leave to
amend. As noted above, allowing the amendment would severely prejudice Defendant
because Plaintiffs failed to comply with their discovery obligations. There is no time
to cure the prejudice because the case has concluded. Also, “[i]n cases where a party
seeks to amend his complaint after entry of judgment,” the Fifth Circuit has
“consistently upheld the denial of leave to amend where the party seeking to amend
has not clearly established that he could not reasonably have raised the new matter
prior to the trial court’s merits ruling.” Caldwell v. Lozano, 689 F. App’x 315, 324 (5th
Cir. 2017). Plaintiffs could have sought leave to amend before the Court’s entry of
judgment. They knew that Sturdivant committed suicide, and they even attempted
to argue a potential suicide claim in response to Defendant’s motion for summary
judgment. But they did not seek leave to amend until after the Court had entered a
final judgment. Accordingly, the Court concludes that they have not demonstrated
good cause for their failure to timely seek leave to amend.
III. CONCLUSION
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For these reasons, the Court denies Plaintiffs’ Motion for Relief from
Judgment [73].
SO ORDERED AND ADJUDGED this 20th day of February, 2019.
_______/s/ Keith Starrett_________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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