Echols v. Gardiner
Filing
152
MEMORANDUM AND ORDER Denying 143 MOTION for Reconsideration of 139 Memorandum and Order. This case is STAYED AND ADMINISTRATIVELY CLOSED pending iterlocutory appeal of this Court's decision to the United States Court of Appeals for the Fifth Circuit. (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KAREN ECHOLS, et al.,
Plaintiffs,
v.
RYAN GARDINER, et al.,
Defendants.
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CIVIL ACTION NO. H-11-0882
MEMORANDUM AND ORDER
This civil rights case is again before the Court on the Motion for
Reconsideration pursuant to Federal Rule of Civil Procedure 59(e) [Doc. # 143] of
Plaintiffs Karen Echols, individually and as representative of the estate of John T.
Barnes, John A. Barnes, and April Phillips, as next friend of John T. Barnes’ children,
CDB and JTB (collectively, “Plaintiffs”). Defendants Hayden Properties, LLC, JS
Property Management, Inc., and Woodland Hills Village Apartment Homes
(collectively, “Woodland Hills”) filed a Response to the Motion [Doc. # 145].
Defendant City of Houston (“City”) also filed a Response [Doc. # 146]. Plaintiffs
filed a single Reply to both Responses [Doc. # 147]. Having considered the parties’
briefing and the applicable legal authorities, the Court denies Plaintiffs’ Motion for
Reconsideration.
I.
PROCEDURAL BACKGROUND
On December 3, 2013, after careful consideration, this Court issued a
Memorandum and Order [Doc. # 139] addressing various dispositive motions filed by
the parties. In its Memorandum and Order, the Court granted summary judgment to
both the City and Woodland Hills on all of Plaintiffs’ claims against those entities and
granted summary judgment to Defendant Ryan Gardiner (“Gardiner”) on Plaintiffs’
failure to provide medical attention claim. The Court, however, denied summary
judgment to Gardiner on Plaintiffs’ excessive force claim because Plaintiffs
established genuine issues of material fact with regard to whether Gardiner used
excessive force against John T. Barnes (“Barnes”) in shooting and killing him on
August 1, 2009. This ruling precluded summary judgment on Gardiner’s claim to
qualified immunity.
Plaintiffs now ask the Court to reconsider various issues on which the Court
granted summary judgment. Specifically, Plaintiffs ask the Court to reconsider its
decision to grant summary judgment on: (1) Plaintiffs’ ratification claim against the
City; (2) Plaintiffs’ failure to supervise claim against the City, as it relates to the
City’s alleged failure to include CED (i.e., TASER) deployments in its Personnel
Concerns Program (“PCP”) early warning system; (3) Plaintiffs’ vicarious liability
claim against Woodland Hills; and (4) Plaintiffs’ direct liability claim against
2
Woodland Hills.1
II.
LEGAL STANDARD
Rule 59(e) permits a litigant to file a motion to alter or amend a judgment. FED.
R. CIV. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than
28 days after the entry of the judgment.”). Reconsideration of a judgment is an
“extraordinary remedy,” and Rule 59(e) serves a “narrow purpose” of allowing a party
to bring errors or newly discovered evidence to the Court’s attention. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A litigant seeking relief under
Rule 59(e) “must clearly establish either a manifest error of law or fact or must present
newly discovered evidence.” Balakrishnan v. Bd. of Supervisors of La. State Univ.
& Agr. & Mech. Coll., 452 F. App’x 495, 499 (5th Cir. 2011) (citing Ross v. Marshall,
426 F.3d 745, 763 (5th Cir. 2005) (quotation marks and citation omitted)). A Rule
59(e) motion “cannot be used to argue a case under a new legal theory.” Id. (citing
Ross, 426 F.3d at 763). A Rule 59(e) motion is also not a “vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised before
the entry of judgment” but instead has a “narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly discovered evidence.”
1
Gardiner, simultaneously, has filed a Notice of Interlocutory Appeal [Doc. # 142] and
has asked the Fifth Circuit to review the Court’s decision denying summary judgment to
Gardiner based on his claim of qualified immunity.
3
Templet, 367 F.3d at 478-79. Moreover, “an unexcused failure to present evidence
available at the time of summary judgment provides a valid basis for denying a
subsequent motion for reconsideration.” Templet, 367 F.3d at 479 (citing Russ v. Int’l
Paper Co., 943 F.2d 589, 593 (5th Cir. 1991)).2
III.
ANALYSIS
A.
Ratification Claim
Plaintiffs argue that, in granting summary judgment to the City on Plaintiffs’
ratification claim, the Court has placed too much weight on Oporto v. City of El Paso,
Tex., 2012 WL 2191697 (W.D. Tex. June 14, 2012), which Plaintiffs claim “created
an artificial standard that the policy maker can immunize the municipality from
liability by simply believing what his officer tells the internal affairs investigation
about a shooting.” Motion for Reconsideration, at 3-5. A review of the Memorandum
and Order shows that the Court cited Oporto twice, but in neither instance did the
Court rely on that precedent alone in rendering its decision. See Memorandum and
Order, at 41-42.3 The Court made a careful review of applicable Supreme Court and
2
In their Motion for Reconsideration, Plaintiffs do not present any newly discovered
evidence.
3
The Court also cited Oporto once in citing to Defendants’ argument.
Memorandum and Order, at 39 n.142.
4
See
Fifth Circuit precedent; it did not merely rely on Oporto’s similar conclusion.4
Plaintiffs also argue that the Court improperly applied the summary judgment
standard and that the facts, when viewed in a light most favorable to the Plaintiffs,
“should have precluded this Court from making the factual determination that this
case is not an extreme factual scenario or manifestly indefensible.” Id., at 5-6. In
essence, Plaintiffs argue here that whether an event was an “extreme factual scenario”
or whether an official’s decision was “manifestly indefensible” can only be decided
by a jury, and not by “the Court as a matter of law.” Id., at 6. This argument,
however, ignores numerous Fifth Circuit cases, only some of which the Court cited
in its Memorandum and Order, which have upheld a district court’s grant of summary
judgment on these same grounds. See, e.g., Peterson v. City of Fort Worth, Tex., 588
F.3d 838, 848 (5th Cir. 2009); Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998).
The Court is unpersuaded that it improperly applied the summary judgment standard.
B.
Failure to Supervise Claim
Plaintiffs offer two lines of attack on the Court’s decision on the failure to
supervise claim. First, Plaintiffs place weight on a single footnote in the Court’s
decision, in which the Court noted that the City’s system for reviewing CED
4
The Court notes that its decision in this regard was only one basis for its conclusion
and that the Court offered additional reasoning why the City was entitled to summary
judgment on Plaintiffs’ ratification claim.
5
deployments “appears to have conformed with one construction of the PERF
recommendation.” Memorandum and Order, at 32 n.126. Plaintiffs term this
comment a “factual misunderstanding.” Motion for Reconsideration, at 7-9. The
Court stands by its interpretation of “the PERF recommendation.” In any event, this
point was not integral to the Court’s conclusion that Plaintiffs failed to demonstrate
a genuine issue of material fact that the City was “deliberately indifferent” in
establishing its early warning system—thus, the Court placed the discussion in a
footnote.
Plaintiffs also rehash arguments that they previously made that the City was
“deliberately indifferent” in failing to adopt their interpretation of the PERF
recommendation and argue that the Court applied the wrong standard in analyzing
their claims. Motion for Reconsideration, at 11-12. The Court amply addressed the
“deliberate indifference” standard, see Memorandum and Order, at 32-34, and
carefully considered Plaintiffs’ arguments.5 Plaintiffs present no basis to conclude the
Court’s decision was “a manifest error of law.”
5
Specifically, the Court stated that “Plaintiffs have not presented any evidence of other
officers’ conduct that would have put HPD on notice that the suggested change to its PCP
system was known to be necessary and that the City chose deliberately not to follow the
suggestion.” Memorandum and Order, at 33. The Court also cited to numerous Fifth Circuit
decisions that have upheld summary judgment for a municipality on similar grounds. See id.,
at 33-34.
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C.
Vicarious Liability Claim
With regard to Plaintiffs’ vicarious liability claim against Woodland Hills,
Plaintiffs raise two arguments. Plaintiffs contend that “this Court failed to consider
the relevancy of [two workers’ compensation] cases for the purpose of attributing
liability to Woodland Hills.” Motion for Reconsideration, at 12. In fact, the Court did
consider those cases, and concluded that the decisions were not relevant. See
Memorandum and Order, at 53 n.168. Plaintiffs also challenge the correctness of the
principle that “an off-duty police officer who observes a crime immediately becomes
an on-duty police officer,” arguing that “Half Price Books represents an absurd
extension of” previous Texas state court decisions and that the concept is “archaic.”
Motion for Reconsideration, at 13-14. The Court disagrees and, in any event, is bound
by the doctrine. Both the Fifth Circuit and Texas appellate courts have upheld this
approach. See, e.g., Williams v. Dillard’s Dep’t Stores, Inc., 211 F. App’x 327, 329
(5th Cir. 2006); Laughlin v. Olszewski, 102 F.3d 190, 192 n.1 (5th Cir. 1996); Moore
v. Wal-Mart Store, Inc., 1995 WL 449901, at *1-2 (5th Cir. 1995); Harris County v.
Gibbons, 150 S.W.3d 877, 882 (Tex. App.–Houston [14th Dist.] 2004, no pet.). The
Court declines Plaintiffs’ invitation to “set aside” this principle “as a legal
anachronism.” Motion for Reconsideration, at 14.
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D.
Direct Liability Claim
Finally, Plaintiffs contend that the Court’s conclusion to grant summary
judgment to Woodland Hills on Plaintiffs’ direct liability claim is “illogical” because,
they argue, a reasonable jury could conclude that Woodland Hills was negligent in
hiring Gardiner. Id., at 14-17. Here again, Plaintiffs essentially rehash their earlier
arguments that the Court rejected. Plaintiffs also argue that the Court failed to
consider Woodland Hills’ ability to interview Gardiner as a means of learning his
employment history. Id., at 15-16; Plaintiffs’ Reply [Doc. # 147], at 7. The Court
considered this argument, although it was not expressly mentioned in the
Memorandum and Order. The Court again has considered this point and finds it
unpersuasive. The Court reiterates that only two of the prior complaints against
Gardiner were sustained—neither of which related to excessive force—and that “an
active duty police officer, irrespective of prior complaints, could competently
perform” the work required of a Courtesy Officer. See Memorandum and Order, at
57-58. Furthermore, Plaintiffs argue that the Court misapplied the “foreseeability”
prong of the analysis. Motion for Reconsideration, at 16-17. The Court addressed
this prong in detail in its Memorandum and Order, see Memorandum and Order, at 5859, and reaffirms its conclusions.
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IV.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Motion for Reconsideration [Doc. # 143] is
DENIED. It is further
ORDERED that this case is STAYED AND ADMINISTRATIVELY
CLOSED pending interlocutory appeal of this Court’s decision to the United States
Court of Appeals for the Fifth Circuit.
SIGNED at Houston, Texas, this
17th
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day of January, 2014.
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