MAXWELL v. NUTTER et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 6/3/15. 6/5/15 ENTERED AND COPIES MAILED TO PLAINTIFF, EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TYREEK M. MAXWELL,
MICHAEL NUTTER, MAYOR OF
PHILADELPHIA, et al.,
June 3, 2015
Tyreek M. Maxwell filed a “motion to alter or amend a judgment” pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. He seeks to amend the judgment
entered against him on March 24, 2015, following the denial of his summary judgment
motion and the granting of the defendants’ motion for partial summary judgment. For the
reasons that follow, I will deny this motion in its entirety.
On the evening of December 30, 2009, Philadelphia Police Officer William Moser
shot Mr. Maxwell twice. Officer Moser claimed that he was justified in the shooting
because Mr. Maxwell had pointed a gun at him. At the preliminary hearing, Officer
Moser testified that he was responding to dispatch radio calls concerning two possible
murder suspects in his area of patrol in Philadelphia. Officer Moser spotted two
individuals who matched the rather barebones radio description. He exited his vehicle to
investigate, and after announcing that he was a police officer, ordered the two men to
stop and place their hands on the wall. One gentleman complied. Mr. Maxwell did not.
In fact, Officer Moser testified that Mr. Maxwell spun around toward him, placed his
hand in his jacket pocket, and pulled out a revolver. In that split second, Officer Moser
shot Mr. Maxwell twice. Mr. Maxwell’s revolver flew out of his hand and landed into
the adjacent house’s yard. The gun was recovered shortly thereafter by a highway
Mr. Maxwell was arrested and charged with murder, attempted murder of a police
officer, aggravated assault of a police officer, and carrying firearms in public. The
murder and attempted murder charges were withdrawn, but Mr. Maxwell was found
guilty of aggravated assault and carrying firearms in public. See Commonwealth v.
Maxwell, CP-51-CR-0006371-2010. Mr. Maxwell received a one to two year sentence
of imprisonment to run consecutively with the sentence he was serving at the time on
unrelated charges. Id.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.”
FED.R.CIV.P. 59(e). “The purpose of a motion for reconsideration . . . is to correct
manifest errors of law or fact or to present newly discovered evidence.” U.S. ex rel.
Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 848 (3d Cir. 2014). “A proper
Rule 59(e) motion therefore must rely on one of three grounds: (1) an intervening change
in controlling law; (2) the availability of new evidence; or (3) the need to correct clear
error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d
None of the three grounds for reconsideration is present here. There has been no
intervening change in controlling law since March 24, 2015. No new evidence has
become available since then. Further, there is no need to correct clear error of law or
prevent manifest injustice. In his motion for relief, however, Mr. Maxwell argues that in
denying summary judgment on his excessive force claim against Officer Moser,
the court stated the reason for the dismissal was the court
believed that the plaintiff was attempting to somehow use
this litigation as a means to attack his conviction in a
state criminal proceeding related to this matter and the
plaintiff says not. The excessive force alleged in the
instant case is not a defense to a defendant being
criminally prosecuted and the request for summary
judgment never placed plaintiff’s excessive force claim in
habeas. The plaintiff alleges that the defendant’s use of
excessive force violates his federally protected
constitutional rights and is thereby actionable under §
1983 regardless of his status of being a plaintiff convicted
of a crime that bears no civil relationship to this case.
See Document #27 at 1-2. In my Memorandum denying Mr. Maxwell’s motion for
summary judgment as it pertained to his excessive force claim, I stated:
Mr. Maxwell moves for summary judgment against
Officer Moser “for excessive force, pain and suffering, as
well as mental anguish.” See Document #23 at ¶¶ 8 and
9. He argues that Officer Moser’s testimony at the
preliminary hearing proves that the officer shot Mr.
Maxwell without justification and caused false and
fraudulent criminal charges to be lodged against Mr.
Maxwell to conceal the excessive use of force. See
Document #23, Exh. B. Mr. Maxwell further argues that
the officer’s testimony shows that Mr. Maxwell was not
in possession of a gun at the time he was shot by Officer
Moser. After a careful review, however, I find that
Officer Moser’s testimony cannot provide the proof for
which Mr. Maxwell had hoped. On the contrary, the
uncontroverted testimony shows that, during an
investigatory stop, Officer Moser was faced with a split
second decision to shoot when Mr. Maxwell pulled his
gun from his jacket and aimed it at the officer. Officer
Moser shot Mr. Maxwell twice. In fact, the testimony
indicates that Mr. Maxwell’s gun was recovered in a yard
by a highway officer. Mr. Maxwell was later found guilty
of aggravated assault and firearms charges in connection
with this December 2009 incident. Accordingly, I will
deny Mr. Maxwell’s motion for summary judgment
against Officer Moser.
See Tyreek M. Maxwell v. Michael Nutter, et al., 2015 U.S. Dist. LEXIS 36464, *13-14
(E.D. Pa. March 23, 2015). Mr. Maxwell failed to prove that Officer Moser was not
justified in shooting him in December 2009. To the contrary, the record reflects that Mr.
Maxwell disobeyed a police Order to stop and place his hands on the wall. Instead, Mr.
Maxwell turned, pulled a gun from his jacket, and aimed it at the police officer. The gun
flew from his hand upon being shot by the officer, and was recovered in a nearby yard
shortly after the shooting. Mr. Maxwell was later found guilty of aggravated assault and
firearms charges stemming from that incident. He has not demonstrated that this state
court conviction has been somehow invalidated. See Heck v. Humphrey, 512 U.S. 477,
486-487 (1994) (In order to recover damages for excessive force caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal, expunged by executive
Order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus). Thus, I
found that Mr. Maxwell’s claim of excessive force would not be cognizable under § 1983
if a judgment in his favor would have necessarily implied the invalidity of his state
conviction or sentence. See Tyreek M. Maxwell v. Michael Nutter, et al., 2015 U.S. Dist.
LEXIS 36464, *14-15.
Accordingly, because none of the grounds for reconsideration is present here, I
will deny Mr. Maxwell’s motion to alter or amend a judgment.
An appropriate Order follows.
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