Diamond-Brooks et al v. City of Webster, Texas et al

Filing 43

MEMORANDUM AND ORDER granting in part, denying in part 40 Emergency Motion to Reconsider Order Granting in Part Motion for Summary Judgment. (Signed by Judge Keith P Ellison) Parties notified.(glyons, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KIMBERLEY DIAMOND-BROOKS;
AND VALERIE ANN GONZALES,
Plaintiffs,
v.
CITY OF WEBSTER, TEXAS;
CHIEF RAY SMILEY; AND
RAYMOND BERRYMAN,
Defendants.

§
§
§
§
§
§ CIVIL ACTION NO. 12-cv-3482
§
§
§
§
§
§

MEMORANDUM AND ORDER
Pending before the Court is the Emergency Motion to Reconsider Order Granting in Part
Motion for Summary Judgment of Plaintiffs Kimberly Diamond-Brooks and Valerie Ann
Gonzales (Doc. No. 40). For the reasons stated below, the motion is DENIED IN PART and
GRANTED IN PART.
I.

LEGAL STANDARD
Though the Federal Rules of Civil Procedure do not themselves specifically provide for a

motion for reconsideration, such motions nevertheless are entertained under the Rules. Plaintiffs
state that they are seeking reconsideration under Rule 54(b), which permits the Court to
reexamine its prior interlocutory rulings “for any reason it deems sufficient.” United States v.
Renda, 709 F.3d 472, 479 (5th Cir. 2013) (internal quotation marks omitted). Motions for
reconsideration from interlocutory orders are governed by the standards for Rule 59(e) motions.
Thakkar v. Balasuriya, 2009 WL 2996727, at *1 (S.D. Tex. Sept. 9, 2009).
A motion under Rule 59(e) must “clearly establish either a manifest error of law or fact or
must present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
1

(citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Relief is also appropriate
where there has been an intervening change in the controlling law. See Schiller v. Physicians
Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). Motions under Rule 59(e) “cannot be
used to raise arguments which could, and should, have been made before the judgment issued.”
Id. In considering a motion for reconsideration, a court “must strike the proper balance between
two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of
all the facts.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).
II.

PLAINTIFFS HAVE NO “NEWLY DISCOVERED” EVIDENCE WHICH
ALTERS THE COURT’S SUMMARY JUDGMENT RULING
Plaintiffs raise a number of arguments regarding “new” evidence of municipal liability

which was not provided the Court prior to its summary judgment ruling. Such evidence may be
“new” to Plaintiffs’ current counsel, but it was clearly available prior to summary judgment.1 In
fact, counsel admits that she discovered the evidence in the course of preparing for trial. Such
preparation should have long preceded trial, and counsel has given no defensible reason for her
delay. Defendants cannot be made to relitigate issues already decided simply because Plaintiffs’
counsel did not turn her focus to this matter until the eve of trial. See Alkek & Williams Ltd. v.
Tuckerbrook Alternative Invs., LP, 695 F. Supp. 2d 508, at *9 (S.D. Tex. 2010) (failure of party
to provide evidence which was available to it “constitutes a valid basis upon which to deny
[reconsideration]”) (citing Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991)).

1

For example, Defendants apparently produced 3,000 documents in the course of litigation
which were only recently provided to Plaintiffs’ current counsel by Plaintiffs’ former counsel.
(Doc. No. 40, at 4-5.) The Court finds it deeply regrettable that the transition of counsel has so
hampered the diligent prosecution of Plaintiffs’ claims. At the same time, the Court has made
allowance after allowance to accommodate the transition. Still, requests for special treatment
continue unabated. At some point, the Court must concern itself with the rights and interests of
the Defendants who have been accused of unconstitutional conduct and who have been awaiting
their chance to disprove the serious allegations against them.
2

Even if the Court were to excuse counsel’s delay, however, Plaintiffs’ so-called “newly
discovered evidence” does not demonstrate a material fact dispute sufficient to attenuate the
Court’s prior summary judgment ruling. Plaintiffs seek to hold the City of Webster liable on a
theory of ratification. For this theory to be viable, Plaintiffs must have evidence “sufficient for a
jury to find that Chief Smiley approved Officer Berryman’s use of force despite knowing it was
unlawful and excessive.” (Doc. No. 32, at 17 (emphasis added).) Plaintiffs’ “newly-discovered”
evidence, like the evidence submitted in opposition to summary judgment, suggests—at most—
that the City of Webster’s investigation into the shooting was cursory and incomplete. The Court
already determined that this evidence was insufficient to demonstrate a material fact dispute on
ratification:
[Plaintiffs] appear to offer these facts—which are disputed by
Defendants—as evidence that Chief Smiley and the Webster Police
Department failed to thoroughly investigate the shooting. But failure to
investigate is not ratification . . . . Nor is there any legal authority for
subjecting a municipality to liability simply because it inadequately
performs an investigation once it has been initiated.
(Id. at 18-19.) Plaintiffs’ “newly-discovered” evidence does not alter the Court’s conclusion that
the City of Webster is entitled to summary judgment on Plaintiffs’ claims.
III.

THE COURT WILL REINSTATE MS. GONZALES’S FOURTEENTH
AMENDMENT CLAIM AGAINST DEFENDANT RAYMOND BERRYMAN.
Plaintiffs seek reinstatement of Ms. Gonzales’s Fourth Amendment claim against

Defendant Raymond Berryman. Ms. Gonzales was injured when the bullet fired by Officer
Berryman “passed through Ms. Diamond-Brooks’s face and hit Ms. Gonzales.” (Doc. No. 40, at
19.) It is undisputed that Ms. Gonzales was not an intended target of the use of force, even
assuming that Officer Berryman intentionally fired his weapon. By law, Ms. Gonzales has no
Fourth Amendment claim against Officer Berryman. See Landol-Rivera v. Cruz Cosme, 906 F.2d

3

791, 792-96 (1st Cir. 1990) (stating that citizen who was struck by bullet intended for someone
else was not the victim of a Fourth Amendment seizure, but may pursue a Fourteenth
Amendment claim); see also Cooper v. Rutherford, 503 Fed. App’x 672, 676 (11th Cir. 2012)
(collecting cases which hold that unintended victim of intentional force has not been seized
under the Fourth Amendment).
Ms. Gonzales can pursue recovery under the Fourteenth Amendment, however. See
Landol-Rivera, 906 F.2d at 796; see also Petta v. Rivera, 143 F.3d 895, 910 n.25 (5th Cir. 1998)
(“[W]here a plaintiff’s excessive force claim, whether he be a prisoner, arrestee, detainee, or an
innocent bystander of tender years, falls outside the specific protections of the Bill of Rights, that
plaintiff may still seek redress under the due process clause of the Fourteenth Amendment.”).
Ms. Gonzales pled a Fourteenth Amendment claim against Officer Berryman in her state court
petition, but she did not support the claim with argument or evidence in her opposition to
summary judgment. (Doc. No. 32, at 2 n.1.) The Court considered her Fourteenth Amendment
claim to be abandoned and granted summary judgment to Defendants. (Id. at 2 n.1, 20.) On
reconsideration, the Court finds the more appropriate course of action is to evaluate whether
Defendants have met their summary judgment burden on Ms. Gonzales’s Fourteenth
Amendment claim, irrespective of her failure to address it her opposition brief. See U.S. v.
$92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (“‘If the moving party fails to
meet [its] initial burden [of informing the court of the basis for its motion and identifying those
parts of the record that demonstrate the absence of a genuine issue of material fact], the motion
must be denied, regardless of the nonmovant’s response.’”) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

4

The Court finds that Defendants did not met their burden of showing no genuine issue of
material fact as to Ms. Gonzales’s Fourteenth Amendment claim. Admittedly, the hurdle for such
a claim is high. To succeed on her claim, Ms. Gonzales must establish that Officer Berryman’s
actions were “grossly disproportionate to the need for action under the circumstances and were
inspired by malice rather than merely careless or unwise excess of zeal” such that Officer
Berryman engaged in “abuse of official power” which “shocks the conscience.” Petta, 143 F.3d
at 902. The summary judgment record reveals a disputed issue of fact regarding whether Officer
Berryman intentionally fired his weapon at Ms. Diamond-Brooks. (Doc. No. 32, at 5-11.) If the
jury credits Officer Berryman’s account that his weapon discharged by accident, then he is no
more liable to Ms. Gonzales under the Fourteenth Amendment than he is to Ms. DiamondBrooks under the Fourth Amendment. But if the jury finds that Officer Berryman deliberately
fired his weapon at Ms. Diamond-Brooks, in a crowded bar, with no warning, and with no
justification, such behavior could “shock[] the conscience.”
IV.

CONCLUSION
For the reasons discussed above, the Court GRANTS IN PART Plaintiffs’ Emergency

Motion to Reconsider Order Granting in Part Motion for Summary Judgment (Doc. No. 40). Ms.
Gonzales’s Fourteenth Amendment claim against Officer Berryman will be reinstated for trial by
jury. In all other respects, the Motion is DENIED.
IT IS SO ORDERED.
SIGNED in Houston, Texas, on this the thirtieth day of April, 2014.

________________________________
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
5