Kuessner v. Wooten

Filing 59

MEMORANDUM AND ORDER re: 44 MOTION for Reconsideration filed by Plaintiff Sonia Kuessner, 54 MOTION to Supplement 46 Statement of Material Facts, filed by Plaintiff Sonia Kuessner. IT IS HEREBY ORDERED that Moti on to Supplement Statement of Facts with Correct Exhibit is GRANTED. ECF No. 54. IT IS FURTHER ORDERED that Plaintiff Motion to Amend Judgment, Reconsider, and Supplement Material Facts is DENIED. ECF No. 44. Signed by District Judge Audrey G. Fleissig on 4/3/19. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

SONIA KUESSNER,
Plaintiff,
vs.
JUSTIN WOOTEN,
Defendant.

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Case No. 1:17-CV-57-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Sonia Kuessner’s Motion to Amend
Judgment, Reconsider, and Supplement Material Facts (ECF No. 44), filed pursuant to
Federal Rule of Civil Procedure 59(e).1 Plaintiff asks the Court to reconsider its
December 26, 2018, Memorandum and Order (ECF No. 42), which granted Defendant
Justin Wooten’s motion for summary judgment on Plaintiff’s 42 U.S.C. § 1983 action
challenging her arrest for driving while intoxicated (“DWI”) .
The Court held that, even if Defendant lacked actual probable cause for the arrest,
a reasonable officer looking at the entire legal landscape at the time of the arrest could
have interpreted the law as permitting the arrest. Thus, Defendant had arguable probable

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Plaintiff has also filed a Motion to Supplement Statement of Facts with Correct
Exhibit (ECF No. 54), in which she states that she inadvertently attached the wrong
exhibit as Exhibit 5 in support of her motion to amend, and she requests to supplement
the record with the correct exhibit. The Court will grant this motion.
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cause and was entitled to qualified immunity. Upon careful consideration, the Court will
deny Plaintiff’s motion to reconsider this holding.
Under Rule 59(e), a court may alter or amend a judgment upon a motion filed no
later than 28 days after entry of the judgment. Fed. R. Civ. P. 59(e). Rule 59(e) gives the
court power to rectify its own mistakes following entry of judgment. White v. N.H. Dep’t
of Emp’t Sec., 455 U.S. 445, 450 (1982). Rule 59(e) motions are limited, however, to
correcting “manifest errors of law or fact or to present newly discovered evidence.”
United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). District
courts have broad discretion in determining whether to grant a Rule 59(e) motion. Id.
In her motion, Plaintiff argues that the Court improperly took as true Defendant’s
statement of fact in support of his motion for summary judgment that Defendant smelled
alcohol on Plaintiff’s breath. Plaintiff contends that she disputed this fact, and in support
of her denial, she cited the deposition testimony of another officer, Toby Haynes, who
encountered Plaintiff as a passenger at a traffic stop hours prior to her arrest, and who
stated that he did not smell alcohol on Plaintiff. ECF Nos. 35 at 10 & 35-1 at 2. Plaintiff
admitted that, in her own deposition, she testified that she did not know whether her
breath smelled of alcohol at the time of the arrest but agreed that, in light of the fact that
she had a couple of drinks that night, it was “possible” that she did smell of alcohol. ECF
Nos. 35 at 10 & 36-6 at 3.
Plaintiff also seeks to offer new evidence, pursuant to Federal Rule of Civil
Procedure 56(e)(1), which she contends highlights Defendant’s lack of credibility.
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Specifically, Plaintiff seeks to offer a deposition taken of Defendant on December 5,
2018, in a different case. The other case is a § 1983 action brought by Mitch Wood, the
driver of the car in which Plaintiff was a passenger during the traffic stop hours before
her arrest, and the individual whom Plaintiff was coming to pick up from the Scott
County Sheriff’s Office when she was arrested by Defendant. In the deposition,
Defendant asserted his Fifth Amendment right not to incriminate himself in response to
questioning regarding whether he forged the signature of Officer Haynes in a probable
cause affidavit in connection with Wood’s arrest.
Plaintiff further notes that other evidence of record in this case has demonstrated
Defendant’s lack of credibility. Specifically, Plaintiff points to several
misrepresentations that Defendant allegedly made in an “Alcohol Influence Report” that
he completed when he arrested Plaintiff. These misrepresentations include Defendant’s
statements that he observed Plaintiff operating a vehicle when he did not; that the smell
of alcohol on Plaintiff was “moderate” when he later admitted that it was only “faint”;
and that he performed several field sobriety tests prior to arrest when he did not perform
these tests until after making the arrest. Finally, Plaintiff notes that it was known to
Defendant at the time of Plaintiff’s arrest that “the then Sheriff of Scott County, Missouri
was having an affair with Mr. Wood’s then estranged wife” (ECF No. 45 at 4),
suggesting an improper motive for Wood’s and Plaintiff’s arrests. Plaintiff argues that
this evidence casts substantial doubt on Defendant’s credibility with respect to the facts
Defendant claims to have observed prior to Plaintiff’s arrest.
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In response, Defendant argues that all of the “new evidence” presented by Plaintiff
was known to Plaintiff prior to the entry of judgment and could have been presented at
that time. Defendant further argues that the evidence is irrelevant and should not affect
the Court’s finding that Defendant had at least arguable probable cause based on the
undisputed facts in the summary judgment record.
As the Court previously held, Plaintiff’s claim presents a close question, and the
Court expresses no opinion as to whether Defendant had actual probable cause. But the
lack of relevant caselaw finding no probable cause under similar circumstances continues
to convince the Court that Plaintiff has not demonstrated the violation of a clearly
established constitutional right so as to defeat Defendant’s claim of qualified immunity.
See District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018); Morgan v. Robinson, No.
17-1002, slip op. at 4 (8th Cir. Mar. 29, 2019) (en banc). Plaintiff’s new evidence
attacking Defendant’s credibility does not change the analysis because the Court
considered only undisputed facts in deciding that arguable probable cause existed, and, in
light of the existence of arguable probable cause, any ulterior motive on the part of
Defendant is irrelevant. See Peterson v. Kopp, 754 F.3d 594, 599 (8th Cir. 2014).
The only dispute of fact that Plaintiff now relies on is whether Defendant smelled
alcohol on Plaintiff prior to the arrest. But even assuming that Defendant did not smell
alcohol on Plaintiff,2 the lack of relevant caselaw finding a Fourth Amendment violation

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In its Memorandum and Order granting Defendant qualified immunity, the Court
assumed that any smell of alcohol on Plaintiff was “faint.” ECF No. 42 at 9.
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under similar circumstances continues to convince the Court that Defendant is entitled to
qualified immunity. See Wesby, 138 S.Ct. at 590.
It remains undisputed that, immediately before her arrest, Plaintiff admitted to
having had a “couple of drinks” in response to questioning regarding her sobriety, her
eyes were bloodshot, and she refused to take a preliminary breath test (“PBT”). Other
federal courts have held that a suspect’s statement that he “had one beer three hours ago”
provided a police officer with at least arguable reasonable suspicion to request to conduct
field sobriety tests, Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008),
and that such suspicion develops into probable cause by a suspect’s refusal thereafter to
submit to a PBT, Miller v. Harget, 458 F.3d 1251, 1260 (11th Cir. 2006); see also
Wilder v. Turner, 490 F.3d 810, 815 (10th Cir. 2007); but see Kent v. Katz, 312 F.3d 568,
570-71, 576-77 (2d Cir. 2002) (denying qualified immunity for DWI arrest based on
factual disputes, where the suspect refused to take a sobriety test, but the only undisputed
indicia of intoxication relied upon by the officer were the suspect’s red eyes, explained
by the suspect to the officer to be due to the suspect recently burning brush on his
property for several days, and a sarcastic statement by the suspect that he had not drank
“very much” alcohol after having initially denied drinking any alcohol).
On this record, the Court still concludes that, although the question is difficult,
existing precedent does not place the lawfulness of Plaintiff’s arrest “beyond debate,” as
required to “clearly establish” the constitutional violation here. See Wesby, 138 S. Ct. at
590; Morgan, slip op. at 4. Thus, the Court declines to alter or amend its judgment
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granting Defendant qualified immunity.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Motion to Supplement Statement of Facts
with Correct Exhibit is GRANTED. ECF No. 54.
IT IS FURTHER ORDERED that Plaintiff Motion to Amend Judgment,
Reconsider, and Supplement Material Facts is DENIED. ECF No. 44.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of April, 2019.

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